d  STATION  HRS, 

INSOH  HTKBBT, 

[LAllKI.I'IIIA. 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


CONVEYANCING 

IN 

PENNSYLVANIA 


With  Forms,  and  Decisions  to  Date. 


BY 

GROVER  CLEVELAND  LADNER 

Of  the  Philadelphia  Bar. 


Philadelphia: 

THE  GEORGE  T.  BISEL  CO. 

Law  Booksellers,  Publishers  and  Importers 

1913 


T 

)"»3  • 


COPYRIGHT,    1913, 
BY 

George  T.  Bisel  Company. 


PREFACE. 

Being  appointed  some  time  ago  to  conduct  a  course  in  Convey- 
ancing, the  author  had  occasion  to  seek  for  a  book  suitable  for 
use  as  a  guide  for  those  taking  the  course.  While  excellent 
works  have  been  written  on  conveyancing,  no  book  has  been 
written  which  covers  the  modern  practice  or  forms.  The  author 
therefore  was  compelled  to  write  out  his  own  lectures  and  while 
doing  so  conceived  the  idea  of  enlarging  them  so  as  to  make 
a  compact  and  practical  book  for  the  use  of  all  persons  transacting 
a  real  estate  business. 

The  modern  conveyancer,  whether  lawyer  or  layman,  not  only 
wants  to  know  the  law  of  conveyancing  but  what  to  do  and 
how  to  do  it.  With  this  thought  in  mind  the  author  has  endeav- 
ored to  set  forth  the  law  of  conveyancing  as  clearly  and  concisely 
as  possible  and  with  ample  citation  of  authorities.  Everything 
obsolete  has  been  omitted.  Little  space  has  been  used  discussing 
doubtful  propositions  of  law.  The  dangerous  shoals  have  been 
pointed  out  and  the  method  to  avoid  them  set  forth.  Liberal 
use  has  been  made  of  forms  to  illustrate  the  text  and  many  more 
have  been  added  in  an  appendix  so  that  it  is  hoped  every  form 
used  in  modern  conveyancing  will  be  found  included;  a  con- 
venience which  will  probably  be  appreciated  by  the  busy  lawyer, 
conveyancer  and  beginner  alike. 

The  methods  of  carrying  on  a  real  estate  business  have  changed 
radically  within  the  last  score  of  years.  The  custom  of  insuring 
title  and  making  settlements  through  Title  Insurance  Companies, 
especially  in  the  larger  cities  has  developed  marvelously.  A 
chapter  has  therefore  been  added  on  Title  Insurance  Companies, 
including  their  mode  of  transacting  business  and  stating  settle- 
ments. At  the  same  time  a  chapter  on  Title  Searching  and 
instructions  how  to  search  has  also  been  included  for  the  use 
of  those  who  still  prefer  to  do  their  own  searching. 

The  author  desires  to  acknowledge  his  indebtedness  to  Albert 
H.  Ladner,  Jr.,  Esq.,  of  the  Philadelphia  Bar,  for  many  valuable 
suggestions  and  forms  embodied  in  this  book. 

Grover  Cleveland  Ladner. 
Philadelphia,  Pa.,  October  I,  1912. 


TABLE  OF  CONTENTS. 

PART  I. 

CHAPTER  I. 

Conveyancing.    Estates  in  Land.    Title. 

section  i. 
Paragraph  Page 

1.  Definition  of  Terms.     Conveyancing,  Land,  Title   17 

SECTION    II. 
ESTATES    IN    LAND. 

2.  Definition  of  Kinds  of  Estates    18 

3.  Freehold    Estates 19 

4.  Estates  Less  than  Freehold    I0- 

5.  Joint  Estates   20 

SECTION   III. 
TITLE,  KINDS  OF. 

6.  What  it  Is.    Naked  or  Actual  Possession  22 

7.  Right  to  Possession 23 

8.  Perfect  or  Good  Title   23 

9.  Marketable  Title 24 

10.  Equitable  Title.     Equity    24 

SECTION   IV. 
TITLE    (CONTINUED)     HOW    IT    MAY    BE    ACQUIRED. 

11.  May  be  Acquired  in  Three  Ways   27 

12.  Definitions  of  Title  by  Descent,  Purchase,  Adverse  Possession        28 


Conveyancing  in   Pennsylvania. 

PART  II. 

Acquisition  of  Title. 

CHAPTER  II. 

Title  Acquired  by  Adverse  Possession, 
section  i. 

Paragraph  PaKe 

13.  Origin  of  Title  by  Adverse  Possession  29 

14.  Statute  of  Limitations  in  Pennsylvania   29 

SECTION   11. 
REQUISITES   TO   ACQUIRE   SUCH   TITLE. 

15.  Possession   Must  be   Actual    3° 

16.  Possession  Must  be   Continuous    31 

17.  Tacking   Interests    31 

18.  Possession  Must  be  Visible  and  Notorious 31 

19.  Possession    Must  be   Hostile    31 

20.  Against  Whom  Such  Title  May  be  Acquired  32 

21.  How  Adverse  Possession  May  be  Averted  32 

SECTION   III. 
NATURE   OF   TITLE   ACQUIRED. 

22.  Title  so  Acquired  is  Perfect  and  Good   33 

23.  But  Must  be  Recorded  if  Owner  Remove.    Act  1901.    Form  . .  33 

24.  Title  to  Lesser  Estates  34 

25.  Such  Title  is  Marketable   35 

PART  III. 

Title  by  Purchase. 

CHAPTER  III. 

Alienation.    Who  May  Take,  Hold  and  Convey. 
26.     Introduction.     Definition  of  Term  Alienation  36 

SECTION   1. 

individuals. 

27.  In  General   36 

28.  Aliens   37 


Table  of  Contents.  vii 

Paragraph  Page 

29.  Persons  of  Unsound  Mind  37 

30.  Habitual  Drunkards    38 

31.  Weakness  of  Mind  and  Senility   38 

32.  Infants   39 

33.  Persons  Under  Duress   39 

34.  Married  Women  40 

35.  Feme  Sole  Traders  41 

36.  Fiduciaries 42 

SECTION   II. 
ASSOCIATIONS  OF  INDIVIDUALS. 

37.  Commonwealth   or    State    43 

38.  Corporations  44 

39.  Foreign    Corporations    45 

40.  Unincorporated  Associations  or  Societies,  Churches 48 

41.  Partners  49 

CHAPTER  IV. 

Methods  of  Acquiring  Title  by  Purchase  and  Instruments  of 
Conveyancing. 

section  i. 
agreements  of  sale. 

42.  What  it  is.    Definition   §0 

43.  Must  be  in  Writing.    Pennsylvania  Statute  of  Frauds 51 

44.  What  the  Writing  Must  Contain.    Form  52 

45.  Meaning  of  Various  Parts    54 

(a.)     Introduction    54 

(&.)     Description    54 

(c.)     Terms  and  Conditions  55 

(d.)     Insurance   Policies    56 

(e.)        Encumbrance  Clause    56 

(A)     Fixture   Clause    57 

(g.)     Possession  Clause  57 

(h.)     Apportionment  of  Taxes,  etc 57 

(i.)      Kind  of  Title  Agreed  On 58 

46.  Execution  of  Agreement  of  Sale,  Signature  by  Agent 59 

47.  Acknowledgment  of  Agreement  of  Sale,  Recording  59 

48.  Legal  Effect  of  Agreement  of  Sale 59 

49.  Extinction  of  Agreement  of  Sale    60 

(a.)     By  Merger    6b 

(&.)     By  Cancellation  or  Recission  by  Parties  60 

50.  Suggestions  in  Drawing  Agreements  of  Sale  60 


viii  Conveyancing  in   Pennsylvania. 

CHAPTER  V. 

Deeds. 

section  I. 

DRAWING   OF    DEEDS. 


Paragraph 


Page 

51.  What    Is   a   Deed?     Seal    62 

52.  Kinds  of  Deeds.     Deed   Poll.     Indenture    63 

g3.    Analysis  of  a  Deed  and  Form  64 

g4    Meaning  of  Various  Parts  of  Deed,  premises  67 

(a.)     Date • 67 

(b.)     Names  of  Parties 67 

(c.)     Consideration    67 

(<f.)     Granting  Clause    68 

(e.)     Description    °9 

(/.)      Recital •••  70 

(g.)     Under  and  Subject  Clause  70 

(h.)     Appurtenance  Clause   72 

55.  Meaning  of  Various  Parts  of  Deed  (Continued),    habendum  72 

(a.)     To  Have  and  to  Hold  Clause  7* 

(b.)     Covenants  and  Warranty   73 

(c.)     Meaning  of  General  and  Special  Warranty   74 

56.  Meaning  of  Parts  of  Deed  (Concluded),   conclusion  75 

(a.)     Execution   Clause    75 

(&.)     Receipt 75f 

(c.)     Acknowledgment    Clause    75 

SECTION   11. 
DRAWING  OF  DEEDS    (CONTINUED).     SHORT  FORM  OF  DEED. 

57.  Short  Form  of  Deed  Under  Act  of  1909  76 

58.  Provisions  of  Act  of  April  I,  1909 77 

SECTION   III. 
EXECUTION   OF   DEEDS.      DELIVERY. 

59.  Meaning    of   Term    Execution    79 

60.  Signing 79 

61.  Sealing    80 

62.  Attestation    80 

63.  Delivery  of  Deed   81 

64     Delivery  in  Escrow - 81 

6£.    Destruction  of  Deed  Does  Not  Revest  the  Property  82 


Table  of  Contents.  ix 

SECTION    IV. 

ACKNOWLEDGMENT  AND  PROBATE  OF  DEEDS.      NOTARY  PUBLIC. 

Paragraph  Page 

66.  Necessity  for  and  Meaning  of  Acknowledgment   82 

67.  How    Made    82 

68.  Separate  Acknowledgments  of  Married  Women  Not  Necessary 

in   Pennsylvania    84 

69.  What  a  Valid  Certificate  of  Acknowledgment  Must  Contain  84 

(a.)     The  Date   85 

(6.)     The   Venue    85 

(c.)     The  Name  of  Grantor   85 

(d.)     Signature  of  the  Officer  Taking  the  Acknowledg- 
ment       85 

(e.)     His  Official  Position   85 

(f.)      His  seal   85 

(g.)     If  a  Notary,  the  Date  of  the  Expiration   of   His 

Commission    85 

70.  By  Whom  Acknowledgments  May  be  Taken  85 

71.  Notaries  Public.    How  to  Become  One   9° 

72.  Probate  of  Deeds  Where  Grantor  is  Dead  or  Unable  to  Appear  91 

CHAPTER  VI. 

Mortgages. 

section  1. 

nature  of  mortgage.     analysis. 

.    73.    Definition  of  Mortgage,  Bond  and  Warrant   93 

74.  History  and  Development  of  Mortgage   94 

75.  Origin  of  Equity  Redemption  of  a  Mortgage  95 

76.  Effect  of  a  Mortgage  96 

77.  Form  of  Mortgage  and  Principal  Parts  Thereof   96 

(a.)     Conveyance    Part    100 

(&.)     Defeasance    102 

78.  Where  Defeasance  is  Not  Annexed  to  the  Conveyance   102 

79.  Certificate  of  Residence  of  Mortgagee    104 

80.  Formal  Parts  of  the  Bond  and  Warrant  of  Attorney  104 

81.  Proceedings  on  the  Bond  and  Warrant  and  on  a  Mortgage 

Compared    108 

SECTION    II. 
WHO  HAS  AND  WHO  HAS  NOT  POWER  TO  MAKE  A   MORTGAGE. 

82.  Individuals.     Married   Women    110 

83.  Infants    Ill 

84.  Other  Persons  Under  Disability  111 

85.  Trustees Ill 

86.  Corporations    Hi 

87.  Corporation  Mortgage  to  Secure  Bond  Issue  112 


x  Conveyancing   in   Pennsylvania. 

SECTION   III. 

KINDS    OF    MORTGAGES. 

Paragraph  Page 

88.  Purchase   Money   Mortgages    I T3 

89.  Advance  Money  Mortgages   U3 

90.  Equitable    Mortgages    115 

91.  First  Mortgages   115 

92.  Second  Mortgages  and  Second  Mortgage  Clause 115 

93.  Building  Association  Mortgages.    Building  Associations  117 

94.  Building  Association  Mortgages   (Continued).     Forms   119 

95.  Leasehold  Mortgages   13° 

96.  Recording  of  Mortgages   130 

SECTION    IV. 
DISCHARGE   OF    MORTGAGES. 

97.  By    Payment    131 

98.  By  Order  of   Court  in   Proceedings  to   Satisfy  a   Mortgage 

Presumed   Paid    132 

99.  Discharge  of  Mortgage  by  Release.    Form 132 

100.  Discharge  by  Judicial  Sale  135 

SECTION    V. 
ASSIGNMENT  OF  MORTGAGES. 

101.  Definition.     Form    136 

102.  Effect  of  Assignment  and  Rights  of  Assignee  138 

103.  Certificate  of  No  Set-off.     Form  138 

CHAPTER  VII. 

Ground  Rents. 

section  1. 

definition.     form  and  analysis. 
104     Definition   and   History    140 

105.  Form  and  Analysis  142 

SECTION   11. 
NATURE   OF   AND   KINDS   OF   GROUND  RENTS. 

106.  A  Ground  Rent  is  Real  Estate 149 

107.  Irredeemable  Ground  Rents  150 

108.  Redeemable   Ground    Rents    150 

109.  Apportionment  of  Ground  Rents   150 

SECTION   III. 
REMEDIES  FOR   COLLECTION   OF   GROUND  RENT   AND  PRINCIPAL. 

1 10.  When  and  How  Rent  Must  be  Paid 151 

in.     Remedy  by  Distress    151 


Table  of  Contents.  xi 

Paragraph  Page 

1 12.  Remedy  by  Re-entry  151 

113.  Remedy  by  Action  of  Ejectment   152 

114.  Remedy  by  Suit  or  Action  of  Assumpsit  152 

SECTION   IV. 
LIEN  AND  DISCHARGE  OF  GROUND  RENTS. 

115.  Lien  of  Ground  Rents  and  Arrearages  of  Rent  152 

116.  Discharge  of  Ground  Rents  by  Extinguishment.    Form 153 

1 17.  Discharge   by    Merger    155 

118.  Discharge  by  Order  of  Court  After  Lapse  of  Twenty-one  Years  156 

119.  Discharge  of  Ground  Rent  on  Judicial  Sale  156 

SECTION   v. 
MORTGAGES   AND   GROUND   RENTS   COMPARED. 

120.  Mortgages  and  Ground  Rents  Compared   156 

CHAPTER  VIII. 
Recording  of  Deeds  and  Other  Instruments  of  Conveyancing. 

121.  Recording.     Definition.     Origin    158 

122.  Object  and  Purpose  of  Recording  159 

123.  Recording  is  Notice  to  the  World   T59 

124.  Effect  of  Not  Recording  Deeds 159 

125.  Time  Within  Which  Deeds  Must  be  Recorded  160 

126.  Time  Within  Which  Mortgages  Must  be  Recorded 161 

127.  Defective  Recording  and  Indexing,   Result  Thereof    162 

128.  Recording  of  Forged  Instruments   163 

129.  Method  of  Recording   164 

130.  What   Instruments   May  be  Recorded    164 


PART  IV. 

Acquisition  of  Title  by  Descent  and  Will. 

CHAPTER  IX. 

Title  by  Descent. 

section  1. 

modern  laws  of  descent. 

131.  Descent.     Definition    168 

132.  Who  May  Inherit  by  Descent   169 

(a.)     Natural    Heirs    169 

(b.)     Illegitimates     169 

(c.)     Adopted   Children    170 


xii  Conveyancing  in   Pennsylvania. 

Paragraph  Page 

133.  Lineal  Heirs  and  Collateral  Heirs   170 

134.  Order  of  Inheritance.     Intestate  Laws  of  Pennsylvania  171 

135-     Synopsis  of  Intestate  Laws   178 

136.  Whole  Blood  and  Half  Blood  181 

137.  Advancements    181 

138.  Recital  of  Deed  of  One  Inheriting  by  Descent 181 

SECTION    II. 
ESTATE  BY   CURTESY. 

139.  Estate  by  Curtesy   182 

140.  Against  What  Land  Curtesy  Attaches  .  t 183 

141.  How  Curtesy  May  Be  Barred  183 

(a.)     By  Voluntary  Joinder  in  a  Deed   183 

(&.)     By  Divorce  A.  V.  M.  183 

(c.)     Desertion  and  Non-Support  by  Husband   183 

((/.)     By   Voluntary   Agreement  or   Release    184 

(c.)     By  Sheriff's  Sale   184 

SECTION   III. 
DOWER. 

142.  Dower    184 

143.  Common  Law  Dower  Still  Exists  During  Husband's  Life  ....  184 

144.  When  the  Dower  Right  of  Wife  Vests  185 

145.  How  Dower  May  be  Barred 185 

(a.)     By  Voluntary  Joinder  in  Deed  185 

(b.)     By  Divorce  A.  V.  M 185 

(c.)     By  Elopement  and  Adultery  of  Wife 185 

(d.)     By  Devise  in  Lieu  of  Dower  185 

(e.)     By  Ante  Nuptial  Agreement  186 

(/".)      By  Release  and  Agreement  186 

(g.)     By  Sheriff's  Sale  186 

(h.)     Sale  by  Orphans'  Court  for  Payment  of  Debts  ....  186 

146.  Bankruptcy  of  Husband  Does  Not  Bar  Dower 186 

CHAPTER  X. 

Escheat. 

147.  Escheat.     Definition    187 

148.  Escheat  of  Lands  Held  by  Aliens  188 

149.  Escheat  of  Land  Held  by  Charities    188 

150.  Escheat  of  Land  in  Custody  of  Trustees   188 

151.  Escheat  of  Land  Held  by  Corporations   188 

152.  Escheat  Not  Perfect  Until  Commonwealth  Commences  Pro- 

ceedings      188 

153.  Bona  Fide  Purchasers  Before  Escheat  Gain  Good  Title 189 

154.  Proceedings  to  Escheat  189 


Table  of  Contents.  xiii 
CHAPTER  XI. 
Wills. 

Paragraph  Page 

155.  Wills.    Definition  of  and  Terms  Thereof  191 

156.  Origin  of  Wills    191 

157.  Modern  Requirements  of  Wills  192 

158.  Statute,  of  Wills  in  Pennsylvania   193 

159.  Who  May  Make  a  Will.    Capacity  193 

160.  Will  Must  be  in  Writing  194 

161.  Will  Must  be  Signed  at  the  End.     Execution  194 

162.  When  Subscribing  Witnesses  Are  Necessary   195 

163.  Form  of  Will  196 

164.  Codicil.     Form  of 197 

165.  Widow's  Right  to  Take  Against  the  Will 198 

166.  Right  of  Surviving  Husband  to  Take  Aganis,t  Will 199 

167.  Revocation  of  Wills.    Express  Revocation  200 

168.  Implied    Revocation    201 

169.  Probate  of  Wills    202 

170.  Recital  in  a  Devisee's  Deed 202 

PART  V. 
Searches.     Real  Estate  Brokers.     Settlements. 

CHAPTER   XII. 
Searches. 

171.  Searches,    Necessity    for    204 

172.  How  Records  Are  Indexed  205 

173.  Kinds  of  Searches 206 

174.  Conveyance    Searches    200 

175.  Registry    Bureau    207 

176.  Encumbrance    Search.        (a.)     Mortgages    207 

177.  Encumbrance    Search*,     (b.)     Judgment   Liens    208 

178.  Where  to  Search  for  Judgment  Liens 209 

179.  Appellate  Court  Judgments   209 

180.  Common  Pleas  Court  Judgments  210 

181.  Criminal  Court  Judgments    210 

182.  United   States   Court  Judgments    211 

183.  Liens  of  Decedent's  Debts   211 

184.  Other  Li*ens,  Mechanics'  and  Municipal  Liens 212 

185.  Locality  Index  in  Philadelphia  212 

186.  Taxes  and  Unfiled  Liens  213 

187.  Assignment  of  Mortgage  Searches 213 

188.  Examination  of  Property   214 

189.  Synopsis  of  How  to  Search  214 

190.  Brief  or  Abstract  of  Title.    Form 216 


xiv  Conveyancing   in   Pennsylvania. 

CHAPTER  XIII. 
Real  Estate  Agents  and  Brokers. 

Paragraph  Page 

191.  Modern  Real  Estate  Business.     Who  is  a  Broker  240 

192.  Real  Estate  Broker  Must  be  Licensed   241 

193.  Effect  of  Not  Obtaining  a  License   241 

194.  When  a  Broker  is  Entitled  to  His  Commissions  242 

195.  When  a  Broker  is  Not  Entitled  to  Commissions  243 

196.  Relation  of  Real  Estate  Broker  to  Client  Regarded  by  Law  as 

a  Confidential  One  244 

197.  Authority  of  a  Real  Estate  Agent  to  Act  244 

198.  Right  of  Principal  to  Cancel  Agency   245 

199.  When  a  Broker  is  Personally  Liable  245 

CHAPTER  XIV. 
Settlements.    Title  Insurance  Companies. 

200.  Title   Insurance   Companies    247 

201.  Application  for  Title  Insurance   248 

202.  Settlement    Certificate    25° 

203.  Approval  of  Form  of  Instruments   253 

204.  Payment  of  Title  Charges  and  Conveyancing  Expenses  253 

205.  Settlements     (Conveyance)     254 

206.  Mortgage   Settlements    261 

207.  Suggestions  in  Making  Settlements  263 

CHAPTER  XV. 
Forms. 

acknowledgments^ 

208.  Acknowledgment  by  Individual.     (Usual  Form)    268 

209.  Acknowledgment  by  Executor,  Administrator  or  Trustee 269 

210.  Acknowledgment  by  Virtue  of  Letter  of  Power  of  Attorney  . .  269 

21 1.  Acknowledgment  by  Corporation  269 

AFFIDAVITS. 

212.  Affidavit   (General  Form)    270 

213.  Affidavit  of  Probate  of  Deed  Not  Acknowledged  270 

214.  Affidavit  of  Probate  of  a  Deed  Not  Acknowledged,  Where  a 

Witness  is  Deceased  or  Absent  271 

215.  Affidavit  to  Remove  Objections  from  a  Settlement  Certificate.  271 

AGREEMENTS. 

216.  Agreement  of  Sale  of  Real  Estate  52 

217.  Agreement  of  Sale  by  a  Builder  272 

218.  Agreement  of  Exchange  of  Real  Estate 274 

219.  Agreement  to  Extend  Mortgage  276 


Table  op  Contents.  xv 

ASSIGNMENTS. 

Paragraph  Page 

220.  Assignment  of  Ground  Rent 153 

221.  Assignment  of  Lease 277 

222.  Assignment  of  Right  to  Purchase  Money  Mortgage  278 

223.  Assignment  of  Mortgage   136 

224.  Certificate  of  No  Set-Off  138 

225.  Declaration  of  Trust    278 

DEEDS. 

226.  Deed  in  Fee  by  Individual  (Usual  Form)   64 

227.  Deed  in  Fee  by  Individual  (Short  Form  Under  Act  of  1909)  .  76 

228.  Deed  by  Corporation  280 

229.  Deed  to  Husband  and  Wife  as  Tenants  by  Entireties  280 

230.  Deed  by  Attorney  in  Fact 281 

231.  Executor's  Deed  Where  Power  to  Sell  is  Given  in  the  Will..  283 

232.  Deed  of  Administrator  or  Executor  for  Land  Sold  at  Public 

Sale  by  Order  of  Orphans'  Court  for  Payment  of  Dece- 
dent's   Debts    285 

233.  Guardian's  Deed  for  Real  Estate  Sold  by  Order  of  Orphans' 

Court    287 

234.  Deed  by  Heirs  and  Guardian  Reciting  Abstracts  of  Wills  and 

Orphans'  Court  Proceedings  Under  the  Price  Act 290 

235.  Deed  of  Heirs  and  Corporation  Guardian  Containing  Recitals 

of  Title  Gained  by  Will,  Extinguishment  of  Ground  Rent, 
Title  Gained  by  Adverse  Possession,  Orphans'  Court  Pro- 
ceedings Under  Price  Act,  etc 294 

236.  Sheriff's  Deed  (New  Form  Under  Act  of  1905)   307 

237.  Deed  of  Individuals  to  Trustees  of  an  Unincorporated  Church  308 

238.  Voluntary   Deed    in    Partition    311 

239.  Master's  Deed  in  Partition  in  Equity   313 

240.  Administrator's  Deed  in  Partition  by  Orphans'  Court  315 

241.  Sheriff's  Deed  in  Common  Law  Partition  by  Common  Pleas 

Courts    318 

242.  Quit  Claim  Deed  (Usual  Form)   320 

243.  Quit  Claim  Deed  (Short  Form  Under  Act  of  1909)   322 

244.  Deed  of  Confirmation    323 

245.  Deed  of  Right  of  Way  or  Easement  323 

246.  Deed  of  Exchange  of  Real  Estate  324 

247.  Ground  Rent  Deed   142 

LEASES. 

248.  Lease  for  Property  in  a  City  (All  Waivers)  326 

249.  Another   Lease  330 

250.  Farm  Lease   333 

251.  Farm  Lease  on  Shares   335 


xvi  Conveyancing  in   Pennsylvania. 

LETTERS  OR  POWERS   OF  ATTORNEY. 

Paragraph  Page 

252.  Form  of  Letter  or  Power  of  Attorney  Appointing  a  Person 

Attorney  in  Fact  to  Act  for  and  Execute  Instruments  for 

the  Principal    338 

253.  Letter  of   Substitution    339 

254.  Letter  or  Power  of  Attorney  to  Satisfy  Mortgage  341 

255.  Revocation  of  Letter  of  Attorney  341 

MORTGAGES    AND    BONDS    AND    WARRANTS. 

256.  Sci.  Fa.  Mortgage  and  Bond  and  Warrant  (Usual  Form)   96,  104 

257.  Building  and  Loan  Association  Mortgage  and  Bond  and  War- 

rant      119 

258.  Corporation   Mortgage   (Sci.  Fa.)    342 

259.  Corporation  Mortgage  to  Trustee  to  Secure  Bond  Issue 342 

260.  Second   Mortgage  Clause    115 

261.  Installment  Sci.  Fa.  Mortgage  and  Bond  and  Warrant  (Second 

Mortgage)     379 

262.  Leasehold   Mortgage 386 

RELEASES. 

263.  Release  of  Mortgage   132 

264.  Release  of  Judgment  388 

RECITALS. 

265.  Recital  of  Title  by  Deed  389 

266.  Another  Form  of  Recital  of  Title  by  Deed  390 

267.  Recital  of  Title  by  Patent 390 

268.  Recital  of  Title  by  Will  390 

269.  Recital  of  Title  by  Descent 390 

270.  Recital  of  Title  by  Descent,  Another  Form  390 

271.  Recital  of  Title  by  Patent,  Descent  and  Deed  391 

272.  Recital  of  Title  by  Adverse  Possession  391 

273.  Recital  of  Title  by  Voluntary  Deed  of  Partition  391 

274.  Recital  of  Title  by  Order  of  Orphans'  Court  in  Partition 392 

275.  Recital  of  Title  by  Writ  of  Partition 392 

276.  Recital  of  Title  by  Attorney  in  Fact  393 

277.  Recital  of  Title  by  Executors 393 

278.  Recital  of  Title  by  Administrator  393 

279.  Recital  of  Title  by  Sheriff's  Sale; 394 

280.  Recital  of  Title  by  Sheriff  for  Property  of  a  Decedent 394 

281.  Recital  in  a  Purchase  Money  Mortgage  Given  to  a  Third  Party  395 

282.  Recital  of  Executor's  or  Administrator's  Deed  for  Land  Sold 

at  Private  Sale  for  Payment  of  Decedent's  Debts  Under  the 
Act  of  May  9.  1889  (P.  L  182),  as  Amended  by  Act  of  June 

9,  A.  D.  1911  (P.  L.  724)   395 

283.  Other    Recitals    397 

WILLS. 

284.  Will  397 

285.  Clause  in  Will  Giving  Executor  Power  to  and  Directing  Him 

to  Sell  Real  Estate 397 

286.  Codicil 398 

287.  Form  of  Codicil  for  a  Child  Born  After  Date  of  Will  398 


PART  I. 

CHAPTER  I. 

Conveyancing.    Estates  in  Land.     Title. 

Page.  Page. 

SECTION    I.  SECTION  III. 

1.  Definition  of  Terms.     Con-  7.  Right  to  Possession   23 

veyancing,  Land,  Title  . .     17        8.  Perfect  or  Good  Title  23 

section  11.  9.  Marketable  Title   24 

2.  Definition  of  Kinds  of  Es-  10.  Equitable  Title.    Equity  ...     24 

tates    18                             SECTION  iv. 

3.  Freehold  Estates  ..  • 19  II.  May  be  Acquired  in  Three 

4.  Estates  less  than   Freehold  19                Ways 27 

5.  Joint  Estates   20  12.  Definitions  of  Title  by  De- 

section  in.                                     scent,   Purchase,  Adverse 
title.  Possession  28 

6.  What  it  is.     Naked  or  Ac- 

tual Possession   22 

CHAPTER  I. 

Conveyancing.    Estates  in  Land.    Title. 

section  i. 

1.     Definition  of  Terms.     Conveyancing,  Land,  Title. 

Conveyancing  has  been  defined  as  the  science  of  transferring 
title  to  land  (Mitchell  on  Conveyancing  in  Pa.  258).  To  properly 
understand  this  definition  we  must  first  understand  the  meaning 
of  the  words  land  and  title. 

Land  is  defined  by  Blackstone  as  comprehending  all  things 
of  a  permanent  substantial  nature  (2  Blk.  16).  In  the  earliest 
days  a  very  sound  and  natural  distinction  was  made  between 
things  movable  and  things  immovable.  The  former  became 
known  as  personal  property  and  the  latter  became  known  as  real 
property.  If,  then,  real  property  is  something  immovable,  land 
is  real  property.  So  also  anything  that  is  substantially  annexed 
or  fastened  to  the  land,  such  as  a  house,  becomes  immovable. 
Hence  it  becomes  real  property.     Properties  movable  and  im- 


18  Conveyancing  in   Pennsylvania. 

movable  are  from  the  very  nature  of  their  distinction  so  essen- 
tially different  that  it  is  not  difficult  to  see  why  different  methods 
of  transferring  ownership  in  them  should  have  arisen  in  the  law. 
Ownership  of  a  horse  can  be  transferred  by  a  physical  delivery 
of  the  animal,  but  land  cannot  be  delivered  in  the  same  way. 
Hence  a  totally  different  method  was  evolved  to  transfer  land. 

The  other  word  of  our  definition  to  be  explained  is  title. 
What  is  title?  Title  is  best  defined  as  the  evidence  of  owner- 
ship of  land.  Conveyancing,  therefore,  means  the  science  or 
method  of  transferring  the  evidence  of  ownership  of  a  perma- 
nent, fixed,  immovable  thing.  As  intimated  this  method  is  so 
totally  different  from  the  method  of-  transferring  ownership  of 
personal  property  that  it  has  been  well  termed  a  science.  We 
will,  therefore,  later  consider  title,  what  it  is,  how  acquired  and 
how  transferred. 

SECTION  II.      ESTATES  IN  LAND. 

2.     Definition  of  Kinds  of  Estates. 

Before  proceeding  to  consider  the  evidence  of  the  ownership 
in  land  we  must  first  understand  the  quantity  of  a  person's  owner- 
ship in  land,  i.  e.,  estates  in  land.  The  term  estate  is  doubtless 
familiar  to  the  reader  and  the  question  is  often  heard,  "What 
estate  does  such  and  such  a  person  have  in  a  certain  piece  of 
land,"  meaning  of  course  what  is  the  quantity  of  his  interest. 
Does  he  own  it  absolutely,  does  he  merely  lease  it  or  does  he  hold 
it  for  life?  Estate  means  a  quantity  of  ownership  in  land  and 
is  to  be  distinguished  from  title  which  is  the  evidence  of  owner- 
ship of  that  quantity,  be  the  quantity  great  as  a  fee,  or  small  as 
an  estate  for  years. 

Blackstone  (2  Blackstone  104)  divides  estates  into  two  gen- 
eral divisions,  each  of  which  are  subdivided  as  follows : 

Fee  simple. 

x  ..   -  (  For  one's  own  life. 

Life  Estate    |  For  the  life  of  another. 

Estate  by  the  curtesy. 
^  Dower. 

(  Estate  for  years. 
Estates  less  than  freehold    J  Estate  at  will. 

I  Estate  at  sufferance. 


Estates  of  freehold  < 


Conveyancing.    Estates  in  Land.     Title.  19 

From  the  table  it  will  be  seen  that  an  Estate  of  Freehold  is 
any  estate  of  uncertain  duration  other  than  an  Estate  of  Will. 
The  only  freehold  estates  at  the  present  time  which  still  persist 
in  the  law  are  these  above  set  forth.  At  common  law  there  were 
many  others  such  as  Estates  Tail;  but  in  order  not  to  confuse 
the  mind  with  terms  that  are  obsolete,  we  will  confine  ourselves 
to  those  that  are  still  in  use.  Those  interested  in  the  historical 
side  of  the  development  of  estates  in  land  we  refer  to  the  second 
book  of  Blackstone's  Commentaries. 

3.    Freehold  Estates. 

A  Fee  Simple  Estate  is  the  largest  estate  that  a  man  can  have 
in  lands.  It  is  the  pure  simple  unconditional  and  absolute  estate 
(Mitchell  on  Real  Estate  and  Conveyancing  91).  It  is  com- 
monly called  an  estate  in  fee.  It  is  the  estate  with  which  we  are 
most  usually  brought  in  contact  and  represents  absolute  owner- 
ship of  land. 

A  Life  Estate  as  the  name  indicates  is  an  estate  for  life.  It 
may  be  granted  for  the  grantee's  own  life  or  for  the  life  of 
another;  in  any  event  to  be  a  life  estate  it  must  cease  with  the 
life  of  the  person  for  the  length  of  whose  life  it  was  granted. 

Estates  of  Dower  and  Curtesy  are  in  reality  life  estates  and 
could  be  treated  as  subdivision  thereof.  However,  as  they  arise 
differently  from  the  ordinary  Life  Estate  we  have  set  them  apart. 

An  Estate  of  Dower  is  an  estate  created  by  mere  operation  of 
the  law.  It  is  the  one-third  interest  which  a  married  woman 
has  in  all  land  owned  in  fee  which  the  husband  had  at  the  time 
of  and  after  his  marriage.  Should  the  wife  survive  her  hus- 
band she  becomes  entitled  to  said  one-third  of  all  his  real  estate 
for  and  during  the  term  of  her  natural  life  (See  page  184). 

An  Estate  of  Curtesy  is  also  an  estate  which  arises  by  opera- 
tion of  law.  It  is  the  right  which  vests  in  the  husband  upon 
marriage  to  enjoy  upon  his  wife's  death  for  and  during  the 
term  of  his  natural  life  all  of  the  real  estate  which  she  owned  in 
fee.  At  common  law  an  estate  by  curtesy  never  vested  until 
the  birth  of  a  child,  but  now  it  vests  upon  the  marriage  even 
though  there  be  no  issue  (See  page  182). 

4.    Estates  Less  Than  Freehold. 

An  Estate  of  Years  is  an  estate  which  is  let  unto  another  to 
enjoy  for  a  stipulated  time.    It  is  an  estate  granted  for  a  limited 


20  Conveyancing  in   Pennsylvania. 

definite  period  of  time.  Whether  given  for  one  month  or  for 
one  year  or  for  two  years  it  is  nevertheless  an  estate  for  years. 
The  distinguishing  feature  about  it  is  that  it  comes  to  an  end  at  a 
known  certain  definite  time. 

Estate  at  Will  is  where  lands  are  let  by  one  man  to  another 
to  hold  at  the  will  of  the  owner  who  is  known  as  the  lessor* 
or  it  may  be  created  to  continue  at  the  will  of  the  lessee,  that  is 
the  party  receiving  the  estate. 

An  Estate  at  Sufferance  is  where  one  comes  into  possession  of 
the  land  by  lawful  means,  but  keeps  it  afterwards  without  any 
title  at  all.  E.  g.,  a  tenant  in  possession  after  the  lease  has  ex- 
pired, is  a  tenant  at  sufferance  so  long  as  the  owner  suffers,  or 
permits  him  to  remain. 

5.    Joint  Estates. 

By  joint  estates  are  meant  such  estates  as  are  vested  in  more 
than  one  person  at  the  same  time,  in  the  same  land.  At  common 
law  there  were  four  kinds :  Estates  in  Joint  Tenancies,  Coparce- 
nary Estates ;  Tenancy  in  Common  and  Estates  by  Entireties.  The 
first  two  are  obsolete  and  no  longer  require  much  consideration ; 
the  other  two  survive  to  the  present  day,  the  last  one  especially 
being  frequently  met  with  in  modern  conveyancing. 

5-A.  An  Estate  in  Joint  Tenancy.  At  common  law  a  joint 
tenancy  in  land  existed  whenever  two  or  more  persons  acquired 
land  by  one  and  the  same  instrument  (Mitchell  on  Real  Estate 
and  Conveyancing  in  Pa.  245).  Each  party  to  such  an  estate  was 
considered  in  law  as  having  vested  in  him  the  undivided  share 
of  the  whole  estate.  Thus  it  followed  that  if  one  of  two  joint 
tenants  died  his  right  survived  to  the  other.  This  effect  could 
not  be  avoided  nor  could  either  compel  a  division  of  the  estate. 
In  Pennsylvania  this  estate  has  been  rendered  obsolete  by  the 
Act  of  March  31,  1812  (5  Smith  Laws  395),  which  took  away 
from  joint  tenancy  the  incident  of  survivorship  and  converted  it 
into  a  tenancy  in  common.  Trust  Estates  alone  are  excepted 
and  between  joint  trustees  the  right  of  survivorship  still  exists. 

5-B.  Estate  in  Coparcenary.  This  is  an  estate  defined  by 
Blackstone  (2  Bl.  Com.  187)  to  be  one  where  lands  of  inherit- 

*The  reader  is  probably  familiar  with  the  significance  of  the  terminations 
or  and  ee  in  legal  terminology,  viz :  that  or  denotes  the  doer  of  the  act,  ee 
the  one  to  whom  the  act  is  done.  A  grantor,  he  who  grants,  grantee,  he 
who  receives.    Vendor,  he  who  sells ;  vendee,  he  who  buys. 


Conveyancing.     Estates  in  Land.     Title.  21 

ance  descend  from  the  ancestor  to  two  or  more  persons.  This 
estate  is  obsolete;  it  no  longer  exists  in  Pennsylvania  because 
the  intestate  laws  of  this  commonwealth  provide  that  where 
lands  descend  to  several  persons  under  its  provisions  they  shall 
take  and  hold  as  tenants  in  common. 

5-C.  Tenancy  in  Common.  Is  where  two  or  more  persons  not 
husband  and  wife  have  an  undivided  interest  in  the  same  land. 
As  the  name  implies,  it  means  land  held  in  common.  Each  co- 
tenant  is  considered  in  law  as  being  possessed  of  the  whole  of  an 
undivided  part  not  of  an  undivided  part  of  the  whole.  It,  there- 
fore, follows  there  is  no  survivorship  in  this  species  of  joint 
estate  and  any  one  of  the  co-tenants  may  compel  partition  of  the 
whole  or  devise  his  portion  to  his  heirs.  Since  the  Act  of  1812 
all  estates  except  estates  by  entireties  (See  Par.  5-D)  and  trust 
estates  held  in  Pennsylvania  by  a  plurality  of  persons  are  ten- 
ancies in  common. 

5-D.  Estate  by  Entireties.  In  our  definition  of  the  Estate  of 
Tenancy  in  Common  it  will  be  observed  we  excepted  husband 
and  wife.  This,  because  an  estate  vested  jointly  in  husband  and 
wife  would  be  an  estate  by  entireties.  It  differs  from  a  tenancy 
in  common  in  that  the  incident  of  survivorship  is  present  in  this 
estate,  and  as  Blackstone  explains  "if  an  estate  in  fee  be  given 
to  a  man  and  his  wife  they  are  neither  properly  joint  tenants  or 
tenants  in  common  for  husband  and  wife  being  considered  one 
person  in  the  law  they  cannot  take  the  estate  by  moieties  (parts) 
but  both  are  seised  by  the  entirety."  Husband  and  wife  cannot 
hold  jointly  in  any  other  way.  Thus,  where  lands  were  con- 
veyed to  husband  and  wife  their  heirs  and  assigns  to  hold  as 
tenants  in  common  and  not  as  joint  tenants ;  the  court  held  that 
the  clearly  expressed  intention  to  make  the  husband  and  wife 
tenants  in  common  could  not  be  regarded  (Stuckey  vs.  Keefe, 
26  Pa.  397 ;  Hoover  v.  Potter,  42  Super.  21 ;  note  page  280). 

A  tenancy  by  entireties  arises  whenever  an  estate  vests  in  two 
persons  who  at  the  time  when  the  estate  vests  are  husband  and 
wife  (Klenke  Estate,  210  Pa.  572;  Myers  Estate,  232  Pa.  89). 
This  estate  may  be  created  not  only  in  real  property  but  also  in 
personal  property  (Brainberry's  Estate,  156  Pa.  628).  Upon  the 
death  of  either  husband  or  wife  the  survivor  takes  the  whole 
estate  and  his  estate  dates  not  from  time  of  death  of  the  other, 
but  from  the  date  of  the  deed.  Thus,  if  a  judgment  lien  is 
entered  against  the  husband  who  holds  an  estate  by  entireties 


22  Conveyancing  in   Pennsylvania. 

and  the  husband  dies,  the  judgment  lien  does  not  bind  his  wife's 
estate  because  her  estate  relates  back  to  the  deed  and  so  ante- 
dates the  judgment  (Hertzel  v.  Lincoln,  216  Pa.  60).  Such  a 
judgment  would  not  bind  the  joint  estate  of  the  husband  and 
wife  but  only  the  expectant  interest  of  the  husband.  Hence  the 
husband  and  wife  could  notwithstanding  such  judgment  convey 
away  a  clear  unencumbered  marketable  title  free  from  its  lien. 
"The  owner  of  such  lien  must  hold  it  subject  to  its  possible  ex- 
tinction in  either  of  two  events,  the  predecease  of  the  husband, 
or  the  alienation  of  the  estate  by  the  joint  act  of  the  parties.  The 
efficiency  of  the  lien  depends  upon  the  non-happening  of  either" 
(Beihl  v.  Martin,  236  Pa.  528).  But  should  the  husband  survive 
the  judgment  remains  a  valid  lien  against  his  estate,  and  would 
even  be  prior  in  lien  to  a  mortgage  dated  after  its  entry,  executed 
by  both  husband  and  wife  (Fleek  v.  Zellhaver,  117  Pa.  213). 
Partition  of  this  estate  cannot  be  compelled  and  the  incident  of 
survivorship  cannot  be  divested  unless  both  husband  and  wife 
join  in  the  deed.  In  no  other  way  can  this  be  done  for  even  a 
divorce  from  bonds  of  matrimony  can  not  convert  an  estate  by 
entireties  to  one  of  tenancy  in  common  (Alles  v.  Lyon,  216  Pa. 
604). 

SECTION   III. 

TITLE,  KINDS  OF. 
6.     Title.     What  it  is. 

Title  is  the  evidence  of  ownership  in  land.  Land  cannot  be 
moved;  hence  if  the  owner  should  go  on  a  long  journey  he  must 
leave  it  behind.  Suppose  on  his  return  he  finds  a  stranger  in 
possession.  The  rightful  owner  to  eject  him  must  rely  on  his 
evidence  of  ownership,  in  other  words,  his  title.  Hence  can  be  seen 
the  necessity  of  having  the  title  in  a  convenient  permanent 
form.  For  this  reason  have  arisen  the  various  methods  of  pre- 
serving this  evidence  of  ownership  of  land  as  reflected  in  the 
modern  recording  system  of  which  we  will  treat  later  (See  Chap- 
ter VIII,  page  158).  Title  may  be  good  or  bad  or  occupy  an  in- 
termediary position  such  as  weak.  Let  us  begin  at  the  bottom 
of  the  ladder  and  work  up.  Of  course  an  absolutely  bad  title 
is  no  title  at  all,  the  lowest  form  of  title  is 

Naked  Possession  or  Actual  Occupation  of  land  without  any 
right  or  pretense  of  right  to  hold  and  continue  possession.    This 


Conveyancing.     Estates  in  Land.     Title.  23 

one  would  say  at  the  first  blush  is  practically  no  title.  True  to  a 
degree,  but  the  mere  possession  with  no  right  is  something  more 
than  no  possession  with  no  right,  for  as  we  shall  presently  see,  a 
continuance  of  such  possession  adverse  to  the  owner  may  ripen 
into  an  absolutely  good  title.  Then,  again,  if  A  should  occupy 
a  certain  piece  of  land  without  any  shadow  of  right  and  B  also 
having  no  right,  should  seek  to  eject  him,  B  cannot  argue  A's 
lack  of  title,  for  the  settled  rule  of  the  law  is  that  the  plaintiff 
seeking  to  eject  another  must  rely  solely  on  the  strength  of 
his  own  title;  he  cannot  recover  on  the  weakness  of  his  ad- 
versary's (Lane  v.  Reynard,  2  S.  &  R.  65). 

7.  Right  to  Possession. 

The  next  higher  grade  of  title  is  the  right  to  possession.  The 
right  to  possession  springs  out  of  a  good  title,  it  belongs  to  him 
who  has  a  right  to  the  property.  It  passes  with  the  right  of 
property.  Suppose  A  purchases  a  piece  of  land  in  Kentucky 
and  when  he  visits  the  property  he  finds  a  strangertn  possession 
who  refuses  to  remove.  Here  it  will  be  seen  the  stranger  has 
the  actual  possession  while  A  has  the  right  to  possession.  Sup- 
pose A  without  commencing  suit  to  eject  the  stranger  should 
transfer  his  title  to  B.  B  immediately  has  the  right  to  possession 
although  he  actually  never  entered  into  possession.  As  against 
the  stranger  his  right  would  prevail. 

8.  Perfect  or  Good  Title. 

Finally  the  perfect  title  exists  where  the  person  who  has  the 
possession  has  also  the  right  to  possession  and  right  of  prop- 
erty. He  has,  what  we  might  call  a  good  and  complete  title.  Pos- 
session, actual  or  constructive,  is  necessary  or  the  title  is  not  com- 
plete. To  give  an  example :  Suppose  A  has  a  complete  paper 
title  by  which  we  mean  that  the  evidence  of  his  right  forms  a 
perfect  chain  whether  by  deed  or  will.  Suppose  now,  X  enters 
possession  of  the  premises  during  A's  absence  and  refuses  to 
vacate  on  A's  return.  A  is  the  record  owner  and  has  a  com- 
plete chain  of  title.  Should  he  proceed  against  X  he  will  pre- 
vail. But  suppose  A  does  nothing  for  twenty-one  years  and  then 
sells  his  right  to  B.  B  gets  the  same  complete  paper  title,  but  X 
can  no  longer  be  ousted.  X's  title  now  prevails.  He  has  gained 
what  is  termed  a  title  by  adverse  possesion.  The  paper  title  is 
still  the  same  but  now  it  is  worthless. 


24  Conveyancing  in   Pennsylvania. 

9.     Marketable  Title. 

This  leads  us  to  consider  what  we  term  a  marketable  title.  A 
marketable  title  is  not  to  be  confounded  with  a  good  title. 
Strange  as  it  may  sound  a  good  title  may  not  be  marketable. 
Speaking  strictly  from  a  legal  standpoint  there  is  no  such  a  thing 
as  a  doubtful  title.  A  title  is  either  good  or  bad  as  far  as  the 
court  is  concerned  but  this  situation  is  conceivable.  A  has  a  per- 
fect title  to  some  land.  B  enters  an  agreement  to  purchase  it. 
Then  he  learns  that  a  stranger  has  been  in  possession  for  ten 
years.  The  title  of  A  is  undoubted;  he  can  eject  the  stranger 
and  so  can  his  successor,  but  to  do  so  requires  the  expense,  an- 
noyance and  hazard  of  a  law  suit.  Legally  A's  title  is  good,  per- 
fect, but  from  a  practical  standpoint  it  is  doubtful,  therefore, 
unmarketable.  No  one  buys  the  hazard  of  a  law  suit  unless  at 
a  greatly  reduced  figure.  An  unmarketable  title  has  been  well 
defined  by  the  Supreme  Court  of  Pennsylvania,  as  a  title  which 
exposes  the  party  holding  it  to  the  hazard  of  litigation 
(Reighard's  Estate,  192  Pa.  108;  Dohnert's  Appeal,  64  Pa.  311; 
Christ  Church  v.  Clark,  47  Pa.  Superior  Ct.  286 ;  Stone  v.  Caster, 
48  Pa.  Superior  Ct.  236). 

It  must,  however,  be  remembered  that  not  all  objections  render 
a  good  title  unmarketable  and  the  question  as  to  what  is  and  is 
not  marketable  title  is  too  large  a  subject  to  develop  in  this  book, 
but  in  practice  the  difficulty  is  avoided  by  defining  in  the  agree- 
ment of  sale  what  the  parties  mean  by  a  marketable  title  and  it 
is  usually  done  by  inserting  the  following  clause:  "The  title  to 
be  good  and  marketable  and  such  as  will  be  insured  by  any  title 
insurance  or  trust  company  in  Philadelphia"  (Srolovitz  v.  Mar- 
gulis,  35  Pa.  Superior  Ct.  252)  (or  specify  the  city  where  settle- 
ment is  to  be  made).  In  this  way  it  will  be  observed  that  an  ob- 
jection raised  by  a  title  company  makes  the  title  unmarketable  as 
agreed  to  between  the  parties. 

10.     Equitable  Title.     Equity. 

To  properly  understand  the  difference  between  a  legal  title 
and  an  equitable  title  we  must  understand  the  meaning  of  the 
word  equity.  Equity  is  a  difficult  word  to  define.  Blackstone 
(Blks.  Introduction,  Sec.  2,  page  61)  adopts  the  definition  of 
Grotius,  who  says  that  "Equity  is  the  correction  of  that  wherein 
the  law  (by  reason  of  its  universality)   is  deficient.'  '  But  this 


Conveyancing.     Estates  in  Land.     Title.  25 

definition  like  all  others  requires  explanation.  Bispham,  in  his 
admirable  book  on  Equity  Jurisprudence,  explains  the  meaning  of 
equity  by  setting  forth  its  history  rather  than  by  attempting  to 
define  it,  and  we  cannot  do  better  than  to  adopt  his  method. 

Historically  the  fountainhead  of  English  justice  was  the  sover- 
eign, the  King.  At  the  time  of  the  Norman  Conquest  and  im- 
mediately thereafter  the  law  was  administered  by  the  King  and 
a  certain  council  which  he  convened  from  among  the  lords  of 
the  realm.  From  this  council  there  developed  the  courts  later 
known  as  the  Court  of  King's  Bench,  the  Court  of  Common 
Pleas,  etc.  In  all  of  these  courts  there  was  administered  justice 
according  to  the  rules  and  precedents  of  the  common  law.  Under 
these  rules  and  precedents  the  party  injured  was  always  entitled 
to  a  judgment  of  money  damages  to  compensate  him  for  his 
injuries.  As  time  passed  it  became  evident  that  money  damages 
awarded  after  an  injury  was  not  always  a  sufficient  compensation 
for  the  injury  suffered.  E.  g.,  suppose  a  man  had  a  beautiful 
grove  of  shade  trees  and  his  neighbor  out  of  pure  wantonness 
cuts  down  a  shade  tree,  the  next  day  cuts  down  another  and 
announces  his  intention  of  continuing  to  do  so  until  all  are  gone. 
The  injured  man  can,  of  course,  sue  and  recover  damages.  But 
money  damages,  while  they  may  punish  the  wrongdoer  cannot 
replace  the  trees.  The  court  of  law  could  not  prevent  the  tres- 
passer from  continuing  his  wanton  trespasses.  It  could  only  give 
damages  to  the  grieved  party.  Again,  Suppose  A  agreed  to  sell 
a  certain  valuable  painting  to  B  and  later  refused  to  carry  out 
his  agreement,  B  could  sue  him,  but  money  damages  would  not 
give  him  that  certain  painting  and  if  it  were  the  only  one  of  its 
kind  manifestly  no  amount  of  damages  could  redress  the  injured 
party. 

Again,  X  has  a  stream  of  water  running  through  his  place 
which  he  uses  to  run  his  mill,  Y  who  is  up  stream  diverts  the 
water,  leaving  X's  mill  high  and  dry.  The  common  law  court 
could  give  X  damages,  but  his  stream  was  gone  forever.  Thus, 
examples  could  be  multiplied  where  the  common  law  by  reason 
of  its  inflexibility  (universality)  afforded  no  proper  relief  to  the 
injured  party.  Now,  as  the  King  was  the  Supreme  Judge,  or 
head  of  Justice,  it  became  natural  for  the  injured  subject  to 
whom  money  damages  afforded  no  relief  to  petition  his  sover- 
eign for  redress.    The  King  had  the  power  to  grant  extraordinary 


26  Conveyancing   in   Pennsylvania. 

relief  if  the  case  warranted  it.     Usually  the  King  would  refer 
the  petition  to  his  chancellor,  the  official  who  acted  at  that  time 
in  the  capacity  of  Secretary  to  the  King.     These  petitions  for 
relief  became  so  frequent  that  later  in  the  reign  of  King  Edward 
I,  an  ordinance  (Bispham's  Principfes  of  Equity  (6th  Ed.)   10) 
was   issued   for  the   purpose   of   relieving  the   King   from   the 
business  of  attending  petitions  addressed  directly  to  him,  whereby 
it  was  provided  that  "All  petitions  touching  the  seal  do  come 
first  before  the  chancellor"  and  further  "if  the  demands  be  so 
great  and  so  much  of  grace  that  the  chancellor  and  those  others 
cannot  do  without  the  King,  then  they  shall  bring  them  before 
the  King  to  know  his  will."    Soon  the  practice  of  presenting  the 
petition  to  the  chancellor   in   the  first  instance  became  firmly 
established.     As  applications  increased  it  became  necessary  for 
vice  chancellors  to  be  provided  and  so  arose  a  separate  court  of 
justice  known  as  the  Court  of  Chancery  or  Court  of  Equity,  in 
which  court  a  suitor  who  had  no  adequate  remedy  in  the  common 
law  court  could  get  relief.    This,  therefore,  is  what  is  meant  by 
Grotius  in  the  definition  above  given  that  equity  is  the  correction 
of  that  wherein  the  law  is  deficient.    The  Equity  Court  has  power 
by  injunction  to  restrain  a  trespass  such  as  set  forth  in  the  exam- 
ple on  page  25,  and  to  compel  A  to  pass  over  the  specific  painting 
which  he  agreed  to  sell  B,  and  compel  Y  to  return  the  stream 
to  its  original  bed.    But  to  the  present  day  consistent  to  the  cause 
which  gave  it  its  origin,  the  equity  court  will  take  jurisdiction  of 
a  matter  only  when  the  suitor  has  no  adequate  remedy  at  law. 
As  America  was  colonized  by  the  English  people  who  brought 
with  them  their  native  customs  and  laws,  America  inherited  both 
the  common  law  and  equity  of  the  Mother  Country  and  retained 
them  after  the  revolution.    Pennsylvania,  to  be  sure,  administered 
her  equity  under  common  law  forms  during  the  early  part  of  the 
19th  century,  but  later  the  legislature  conferred  upon  the  courts 
of  law,  equity  powers  of  the  English  Court  of  Chancery.     And 
now,  while  the  same  judge  may  sit  either  as  a  law'  judge  or  equity 
judge,  when  he  sits  as  equity  judge  or  chancellor,  the  practice  of 
the  court  of  equity  is  strictly  adhered  to.     In  some  States,  New 
Jersey,  e.  g.,  separate  courts  of  law  and  equity  are  still  main- 
tained, although  most  of  the  States  as  well  as  England  have  abol- 
ished separate  equity  courts  and  like  Pennsylvania  have  con- 
ferred equity  powers  upon  the  judges  of  law  courts  who  at  cer- 
tain times  sit  as  chancellors  and  administer  equity  according  to 
the  equity  practice,  forms  and  rules. 


Conveyancing.     Estates  in  Land.     Title.  27 

Returning  now  to  the  question  of  the  difference  between  a 
legal  title  and  equitable  title,  we  find  that  according  to  the 
common  law  the  person  who  had  the  title  to  land  was  the 
only  one  recognized.  The  common  law  courts  would  not  recog- 
nize the  right  to  the  title  as  being  in  any  other  person.  Equity, 
on  the  other  hand,  being  unfettered  by  the  precedents  of  the 
common  law,  recognized  rights  which  the  common  law  would 
not  entertain.  E.  g.,  suppose  A  agreed  to  sell  his  land  to  B,  and 
then  subsequently  refused  to  do  so.  The  legal  title  of  course  re- 
mained in  A,  but  the  right  to  the  title  was  really  in  B.  B  in  all 
fairness  should  have  the  land  upon  payment  of  the  purchase 
price  because  A  agreed  to  give  it  to  him.  Yet  B's  right  to  title 
was  not  recognized  in  the  common  law  court.  B  might  recover 
damages  for  A's  breach  of  contract,  but  he  could  not  recover 
the  land.  Equity,  however,  stepped  in  to  correct  this  deficiency 
of  the  law.  It  recognized  the  fact  that  B,  although  he  had  no 
title  to  the  land  in  the  legal  sense  of  the  term,  nevertheless  had 
a  right  to  have  that  title  transferred  to  him.  So  the  chancellor 
compelled  A  to  give  title  to  B  and  accept  the  money.  An 
equitable  title,  therefore,  is  such  a  title  as  is  recognized  by  a  court 
of  equity  while  a  legal  title  is  such  as  is  recognized  by  a  court 
of  law.  Another  example  of  equitable  title  is  a  trust.  A  trust 
is  created  by  giving  title  of  property  to  one  person  to  hold  for 
the  use  of  another.  In  a  trust,  therefore,  the  legal  title  is  in 
one  person  and  the  beneficial  use  or  ownership  of  the  property  is 
vested  in  another.  The  person  who  has  the  legal  title  is  called 
the  trustee.  The  person  for  whose  benefit  the  trust  exists  is  called 
the  Cestui  que  trust.  The  Cestui  que  trust  has  no  standing  in  a 
court  of  law,  but  in  a  court  of  equity  his  right  prevails.  His  title 
is,  therefore,  an  equitable  title. 

section  iv. 

how  title  may  be  acquired. 
11.    May  be  Acquired  in  Three  Ways. 

We  have  thus  considered  what  title  is,  and  the  kinds  that  exist. 
We  will  now  consider  how  title  may  be  acquired  and  transferred. 
Blackstone  divided  the  methods  of  acquiring  title  to  land  into 
two  general  classes,  viz:  1st:  Title  acquired  by  Purchase,  and, 
2d:  Title  acquired  by  Descent.  For  the  sake  of  convenience  we 
will  take  a  subdivision  of  his  first  class  which  he  called  Title  by 


28  Conveyancing  in   Pennsylvania. 

Perscription  and  constitute  it  a  third  class,  entitled  Title  by  Ad- 
verse Possession. 

12.     Definitions  of  Title  by  Descent,  Purchase  Adverse  Possession. 

i.  Title  by  Descent  is  title  acquired  by  hereditary  succession. 
That  is  to  say,  such  title  that  is  acquired  by  the  heirs  of  the  prior 
owners. 

2.  Title  by  Purchase  we  will  define  as  any  other  method  of  ac- 
quiring title  other  than  by  descent  or  by  adverse  possession  as 
e.  g.:  by  the  owner's  act,  agreement,  will  or  gift. 

3.  Title  by  Adverse  Possession  is  such  title  as  is  acquired  by 
holding  possession  of  the  property  adversely  to  the  owner  for 
twenty-one  years. 

In  order  to  logically  present  this  book  we  shall  first  briefly 
consider  Title  by  Adverse  Possession,  then  Title  by  Purchase 
with  the  exception  of  title  acquired  by  will  and  finally  Title  by 
Descent,  including  title  by  will. 


PART  II. 

CHAPTER  II. 

Title  Acquired  by  Adverse  Possession. 

Page.  Page. 

SECTION  I.  19-  Possession  Must  be  Hostile    31 

13.  Origin  of  Title  by  Adverse  20.  Against   Whom   Such  Title 

Possession  29  May  be  Acquired  32 

14.  Statute    of    Limitations    in  21.    How    Adverse    Possession 

Pennsylvania    29  May  be  Averted  32 

SECTION    II.  SECTION   III. 

REQUISITES  to  acquire  such  A  22.  Title   So   Acquired  is   Per- 

title.  feet  and  Good  33 

15.  Possession  Must  be  Actual     30  23.  But    Must   be    Recorded   if 

16.  Possession    Must    be    Con-  Owner      Remove.       Act 

tinuous   31  1901.     Form  33 

17.  Tacking  Interests  31       24.  Title  to  Lesser  Estate 34 

18.  Possession  Must  be  Visible  25.  Such  Title  is  Marketable  . .     35 

and  Notorious  31 

SECTION   I. 

DEFINITION  AND  ORIGIN. 

13.  Origin  of  Title  by  Adverse  Possession. 

The  method  of  acquiring  title  by  adverse  possession  results  from 
the  policy  of  the  law  to  limit  the  time  for  bringing  actions  to 
recover  property,  to  a  reasonable  time.  As  said  by  the  Supreme 
Court,  "No  person  ought  to  be  permitted  to  lie  by  whilst  trans- 
actions can  be  fairly  investigated  and  justly  determined  until  time 
has  involved  them  in  uncertainty  and  obscurity  and  then  ask  for 
an  inquiry  (Foulk  v.  Brown,  2  Watts  215).  Accordingly  all 
jurisdictions  have  fixed  a  time  limit  in  which  actions  to  determine 
rights  must  be  begun.  In  Pennsylvania  the  time  limit  is  pre- 
scribed by  a  statute  commonly  called  Statute  of  Limitations. 

14.  Statute  of  Limitations  in  Pennsylvania. 

The  Statute  of  Limitations  in  Pennsylvania  relating  to  land  as 
amended  by  later  acts  now  provides  in  substance  that  actions  to 
determine  rights  in  land  must  be  commenced  within  twenty-one 

29 


3o  Conveyancing  in   Pennsylvania. 

years  after  the  right  of  action  accrues.  Otherwise  such  rights  are 
forever  barred  (Act  of  Mar.  25,  1785,  2  Sm.  L.  300,  sec.  2).  But 
persons  who  are  under  a  disability  such  as  insane,  under  age,  or 
in  prison  have  nine  years  longer,  in  other  words  those  under  a  dis- 
ability have  thirty  years  in  which  to  bring  their  actions  from  the 
time  it  accrues  (Act  of  April  22,  1856,  P.  L.  532,  sec.  1).  Title 
acquired  by  adverse  possession  may  be  recorded.  See  Act  of 
May  31,  1901,  P.  L.  352,  of  which  we  will  treat  hereinafter  (Par. 

23)- 

What  is  necessary  to  gain  title  by  adverse  possession. — In 
order  to  gain  a  title  by  adverse  possession  the  possession  must 
be  adverse  and  hostile  to  the  owner  for  the  period  of  twenty-one 
years  or  thirty  years  if  the  owner  is  under  disability  as  above 
set  forth.  What  constitutes  adverse  possession  depends,  of 
course,  more  or  less  upon  the  general  circumstances  of  each  case. 
The  general  rule  is  laid  down  by  the  Supreme  Court  of  Penn- 
sylvania in  Hawk  v.  Senseman,  6  S.  &  R.  24,  wherein  it  is  said 
that  the  kind  of  possession  necessary  to  obtain  title  against  the 
real  owner  is,  an  "actual,  continued,  visible,  notorious,  distinct 
and  hostile  possession.  The  owner  does  not  forfeit  his  title  to 
the  first  straggler  who  sets  himself  down  on  his  land;  but  the 
policy  of  the  law  for  the  sake  of  quieting  men's  possessions,  con- 
fers the  possession  right  itself  upon  him  who  has  entered  under 
an  adverse  claim  and  held  a  notorious  possession  and  occupation 
for  twenty-one  years."  By  analyzing  this  definition  it  will  be 
seen  that  four  requisites  are  essential  to  gain  a  title  by  adverse 
possession : 

1.  The  possession  must  be  actual. 

2.  It  must  be  continuous. 

3.  It  must  be  visible  and  notorious. 

4.  It  must  be  distinct  and  hostile. 

SECTION  11. 

REQUISITES  TO  ACQUIRE   SUCH   TITLE. 
15.     Possession  Must  be  Actual. 

We  have  seen  that  the  rightful  owner  has  by  virtue  of  his 
title  constructive  possession  of  the  land.  Therefore,  the  stranger 
must  take  actual  possession  of  the  property  to  oust  this  construc- 
tive possession.  Actual  possession  sufficient  to  ultimately  vest  title 
in  the  stranger  may  arise  from  the  following  acts:  residence  on 


Title  Acquired  by  Adverse  Possession.  31 

the  land,  erecting  buildings,  enclosing  it  with  a  fence  (Hughes 
v.  Pickering,  14  Pa.  297).  No  particular  acts,  however,  are  nec- 
essary to  establish  actual  possession  but  there  must  be  some  posi- 
tive act  inconsistent  with  the  right  of  the  real  owner. 

16.  Possession  Must  be  Continuous.     Tacking  Interests. 

In  order  to  ripen  into  a  legal  title  the  possession  must  be  con- 
tinuous and  uninterrupted  (Pederick  v.  Searle,  5  S.  &  R.  236; 
Duffy  v.  Duffy,  20  Superior  Ct.  25).  No  single  act  of  trespass 
or  a  series  of  occasional  journeys  to  the  land  are  sufficient,  the 
occupation  must  be  continuous.  In  Stephens  v.  Leach,  19  Pa. 
262,  it  was  said,  "A  man  endeavoring  to  gain  a  title  by  adverse 
possession  is  bound  to  continue  a  positive  appearance  of  owner- 
ship by  treating  the  property  as  his  own  and  holding  it  within 
his  exclusive  control. 

17.  Tacking  Interests. 

The  continuous  possession  for  twenty-one  years  need  not  nec- 
essarily be  by  one  person.  It  may  be  by  several  persons  pro- 
vided the  one  derives  his  actual  possession  from  the  other.  Thus, 
when  A  entered  upon  land,  improved  it  and  after  staying  a  few 
years  gave  up  his  improvements  and  possession  to  B  who  stayed 
nineteen  more  years  before  an  action  was  commenced  by  the 
owner  to  eject  him,  it  was  held  that  the  twenty-one  years  must  be 
counted  from  A's  occupation  (Hughes  v.  Pickering,  14  Pa.  297). 
This  is  called  technically  "tacking  interests."  But  it  must  be 
remembered  that  for  the  interests  of  such  trespassers  to  be 
"tacked"  the  one  must  derive  his  possession  from  the  other 
(Moore  v.  Collishaw,  10  Pa.  224). 

18.  Possession  Must  be  Visible  and  Notorious. 

Of  course  a  secret  occupation  or  claim  of  right  could  not  be 
guarded  against.  Hence  the  law  requires  that  the  possession  must 
be  visible  and  notorious  (Schrack  v.  Zubler,  34  Pa.  38). 

19.  Possession  Must  Be  Hostile. 

This  means  the  possession  must  be  adverse  to  the  owner.  The 
stranger's  title  must  be  hostile  to  the  owner's  and  not  subordinate 
to  it,  e.  g.:  If  the  owner  should  permit  a  friend  to  occupy 
the  premises  without  fixing  a  term  for  such  occupation  even 
though  such  occupation  were  continued  for  fifty  years  no  title 


32  Conveyancing  in   Pennsylvania. 

could  be  acquired  against  the  owner,  for  occupant  claims  his  pos- 
session not  adverse  or  hostile  to  but  subordinate  to  the  owner. 
Otherwise,  anyone  whom  the  owner  let  into  possession  might 
obtain  title  upon  mere  failure  of  the  owner  to  eject  him  in 
twenty-one  years.  Therefore,  the  hostility  is  an  important  es- 
sential. He  who  is  in  possession  must  claim  against  the  whole 
world  continuously  and  aggressively  (Stephens  v.  Leach,  19  Pa. 
262).  As  long  as  one  claims  under  the  owner,  title  by  adverse 
possession  can  never  be  acquired. 

20.  Against  Whom  Title  by  Adverse  Possession  May  Be  Acquired. 

Title  by  adverse  possession  cannot  be  acquired  against  the  Com- 
monwealth or  a  municipality  (McGuire  v.  Wilkes-Barre,  36 
Superior  Ct.  418)  nor  against  anyone  with  whom  the  claimant 
occupies  in  privity  as  for  example:  Tenant  and  Landlord, 
Vendor  and  Vendee  (Connor  v.  Bell,  152  Pa.  444;  Hads  v.  Tier- 
nan,  213  Pa.  44),  Tenants  in  Common  (Hayes'  Appeal,  123  Pa. 
no),  Trustees  and  Cestui  que  Trust  (Scott  v.  Gallagher,  14  S. 
&  R.  333),  Husband  and  Wife  (Husband  and  Wife,  Collins  v. 
Lynch,  157  Pa.  246).  As  against  the  Commonwealth,  title  by 
adverse  possession  can  never  be  acquired,  as  against  the  others; 
it  can  only  be  acquired  by  the  party  in  possession  under  the  rela- 
tion expressly,  openly  and  notoriously  avowing  that  he  holds  pos- 
session not  by  virtue  of  the  relation  but  adversely  to  it.  The 
twenty-one  years  will  not  run  until  the  respective  relation  is 
broken  by  such  open  hostile  and  notorious  avowal  of  breach  of  the 
relation. 

21.  How  Adverse  Possession  May  Be  Averted. 

In  general  the  statute  may  be  said  to  run  from  the  time  an 
action  in  ejectment  might  have  been  begun.  The  best  way  to 
defeat  the  running  of  the  statute  is  to  commence  an  action  of 
ejectment  against  the  occupant.  Mere  notice  of  title  by  the  one 
out  of  possession  to  the  person  in  position  will  not  prevent  the 
running  of  the  statute  (McCombs  v.  Rowan,  59  Pa.  414). 

Neither  will  a  clandestine  re-entry  (id.)  ;  but  actual  expulsion 
of  the  occupant  and  a  physical  resumption  of  possession  will 
arrest  the  statute ;  but  care  must  be  taken  in  pursuing  this  remedy 
lest  the  owner  make  himself  liable  for  indictment  for  forcible 
entry  (Comm.  v.  Schaffer,  32  Pa.  Superior  Ct.  382). 


Title  Acquired  by  Adverse  Possession.  33 

section  3. 
nature  of  title  acquired.    act  of  i9oi. 

22.  Title  So  Acquired  is  Perfect  and  Good. 

Up  until  the  expiration  of  the  twenty-one  years  the  inchoate 
title  which  the  claimant  may  have  can  be  lost  by  abandonment 
of  the  title;  but  after  the  expiration  of  twenty-one  years  there 
is  vested  in  the  claimant  an  indefeasible  title  in  fee  simple  and 
subsequent  neglect  to  keep  up  possession  cannot  confer  any  equity 
upon  the  purchaser  of  the  outstanding  paper  title  which  the 
statute  barred  (Shall  v.  Williams  Valley  R.  R.  Co.,  35  Pa.  191), 
but  recently  the  rule  had  been  modified  as  to  certain  parties  by 
the  Act  of  May  31,  1901,  as  noted  in  the  next  paragraph. 

23.  But  Must  Be  Recorded  if  Owner  Remove. 

By  the  Act  of  May  31,  1 901,  P.  L.  352,  it  is  now  provided  that 
the  acquired  title  by  adverse  possession  may  be  recorded  and 
where  the  claimant  leaves  possession  he  must  record  it  in  six 
months  after  his  removal;  else  it  will  not  be  good  as  against  a 
bona  Me  purchaser  or  mortgagee  without  notice,  of  the  holder  of 
the  paper  title.  This  act  prescribes  the  form  and  method  of 
recording.  The  form  of  deed  for  recording  title  by  adverse 
possession  is  as  follows: — 

Form  of  Claim  of  Title  Acquired  by  Adverse  Possession  to 

Be  Recorded. 

I,  John  Roberts,  of  Ivyland,  in  the  County  of  Bucks,  State  of 
Pennsylvania,  do  hereby  affirm  and  declare  that  I  have  acquired 
title  in  fee  by  twenty-one  years  adverse  possession  to  the  follow- 
ing described  land,  situate  in  Rockhill  Township,  County  of 
Bucks,  State  of  Pennsylvania,  to  wit : — 

Beginning  at  a  heap  of  stones  at  the  corner  of  Frank  Peter- 
son's land;  thence  along  the  same  north  forty-six  degrees,  west 
six  perches  to  stones  for  a  corner  of  William  Thompson's  land ; 
thence  along  the  same  south  forty-two  degrees,  west  12  perches 
to  a  post,  a  corner  in  the  line  of  Samuel  Andrew's  land ;  thence 
by  the  same  south  thirty-seven  degrees,  east  forty-eight  perches 
to  a  stone  for  a  corner ;  thence  north  seven  degrees,  east  seventy- 
three  and  five-tenths  perches  to  the  place  of  beginning,  contain- 
ing five  acres  and  sixty-two  perches  of  land,  more  or  less. 


34  Conveyancing  in  Pennsylvania. 

Adverse  entry  was  made  upon  said  land  by  me  on  or  about  the 
21st  day  of  March,  Anno  Domini  1886,  and  continued  until  about 
the  first  day  of  June,  Anno  Domini  1912.* 

At  the  time  of  said  entry,  Isaac  Brown  (naming  some  person 
or  persons  in  the  line  of  existing  title  or  legal  title,  as  nearly  as 
the  same  may  be,  the  real  owner  of  said  lands  at  the  time  of 
such  entry)  was  owner  or  reputed  owner  of  said  land  and  I  claim 
adversely  to  him. 

Witness  my  hand  and  seal  this  first  day  of  August,  A.  D.  1912. 

John  Roberts.     (Seal.) 
State  of  Pennsylvania     ) 
County  of  Bucks,  J 

Be  it  remembered  that  on  the  first  day  of  August,  A.  D. 
1912,  before  me  the  subscriber,  a  notary  public  in  and  for  the 
Commonwealth  of  Pennsylvania  residing  at  Doylestown,  per- 
sonally appeared  John  Roberts,  who  being  duly  sworn  did  declare 
and  say  that  the  facts  set  forth  in  his  foregoing  Statement  of 
Claim  are  true  as  he  verily  believes. 

Witness  my  hand  and  seal  the  day  and  year  aforesaid. 

Thomas  Stone,     (Seal.) 

Notary  Public. 

My  commission  expires  May  1,  1913. 

24.     Title  to  Lesser  Estates. 

Where  the  holder  of  a  life  estate  is  deseised,  that  it  put  out 
of  possession  by  his  failure  to  oust  one  who  is  in  actual  possession 
for  twenty-one  years,  the  deseissor  gets  only  the  title  to  the  life 
estate,  which  ends  with  the  death  of  the  life  tenant.  It  will 
be  remembered  that  the  statute  only  runs  from  the  time  the  right 
of  action  accrues.  In  such  a  case  as  the  right  of  action  of  the 
remainderman  accrues  only  on  the  death  of  the  life  tenant,  his 
interests  are  not  barred  until  twenty-one  years  thereafter. 

*If  the  possession  of  the  claimant  is  tacked  on  to  that  of  others  who 
have  preceded  him  (See  Par.  17),  it  should  be  stated  as  follows:  Adverse 
Entry  was  made  upon  said  lands  by  Thomas  Jones  on  or  about  the  21st 
day  of  March,  Anno  Domini  1886,  who  continued  in  possession  until  about 
the  first  day  of  December,  Anno  Domini  1896,  and  was  succeeded  therein 
by  William  Smith,  who  continued  in  possession  until  about  the  ninth  day 
of  January,  Anno  Domini  1905,  and  was  succeeded  therein  by  me,  who 
continued  in  possession  until  about  the  first  day  of  June,  Anno  Domini 
1912. 


Title  Acquired  by  Adverse  Possession.  35 

25.     Title  by  Adverse  Possession  Is  Marketable. 

The  title  by  adverse  possession  is  purely  legal  and  is  as  perfect 
a  title  as  though  the  holder  of  it  had  a  deed  of  record.  Since 
the  Act  of  1901  he  may  now  record  it  and  so  have  a  record  of  it. 
It  is  good  and  marketable  and  as  such  recognized  and  enforced  by 
the  Courts  (Bell  v.  Moredock,  54  Pitts.  L.  J.  379;  Stroud  v. 
Prager,  130  Pa.  401). 


PART  III. 

Title  by  Purchase. 

CHAPTER  III. 

Alienation.    Who  May  Take,  Hold  and  Convey. 

Page.  Page. 

26.  Introduction.    Definition    of  34-  Married  Women  40 

Term  Alienation 36      35-  Feme  Sole  Traders  41 

section  1.  36.  Fiduciaries   42 

INDIVIDUALS.  SECTION   II. 

27.  In  General  36  associations  of  individuals. 

28.  Aliens  37  37-  Commonwealth  or  State  ...     43 

29.  Persons  of  Unsound  Mind.  37  3§-  Corporations 44 

30.  Habitual  Drunkards   38  39-  Foreign  Corporations   45 

31.  Weakness  of  Mind  and  Se-  40.  Unincorporated       Associa- 

nility    38  tions     or     Societies, 

32.  Infants  39  Churches    48 

33.  Persons  Under  Duress 39      41.  Partners 49 

26.     Introduction.     Definitions  of  Term  Alienation. 

Title  by  purchase  we  have  seen  includes  all  methods  of  acquir- 
ing title  except  by  title  by  descent  and  by  adverse  possession.  It  is, 
therefore,  the  most  common  method  of  acquiring  title.  Before 
considering  in  detail  the  method  of  acquiring,  we  must  first  con- 
sider what  persons  or  bodies  have  the  power  or  right  to  hold, 
acquire  or  convey  title  to  real  estate.  The  capacity  to  take,  to 
hold  and  to  convey  title  to  real  estate,  as  Professor  Mitchell  in 
his  excellent  lectures  on  conveyancing  says,  depends  upon  a 
variety  of  circumstances.  "Some  persons  can  take  title  but 
cannot  hold  it.  Others  can  take  and  hold  but  cannot  convey  it." 
This  capacity  to  take,  hold  and  convey  lands  is  called  the  capacity 
to  alien  or  to  alienate  land  and  the  method  of  transferring  land 
is  technically  called  the  alienation  of  land  which  means  substan- 
tially what  we  now  understand  by  the  term  Conveyancing. 

SECTION  I.     INDIVIDUALS. 
27.    Who  May  Take,  Hold  and  Convey.    Individuals.    In  General. 
Any  person  who  has  the  legal  capacity  to  bind  himself  by  con- 

36 


Alienation.  37 

tract,  may  convey  his  real  estate.  The  same  disabilities  which 
incapacitate  him  from  making  a  legal  contract,  incapacitate  him 
from  making  a  valid  deed.  Keeping  in  mind  the  general  rule, 
therefore,  that  any  individual  not  under  a  legal  disability  may 
freely  alienate  land,  it  becomes  important  to  see  and  understand 
what  these  disabilities  are.  Classified  under  their  respective 
disabilities,  we  have:  Aliens,  Persons  of  Unsound  Mind,  Drunk- 
ards, Persons  Under  Duress,  Infants,  Married  Women,  Feme 
Sole  Traders,  Fiduciaries.  Since  not  all  of  these  individuals  are 
not  absolutely  prevented  from  alienating,  it  becomes  necessary 
to  consider  each  one  separately. 

28.  Aliens. 

At  common  law,  it  was  deemed  for  the  welfare  of  England 
that  aliens,  that  foreign-born  residents  should  be  forbidden  to 
hold  land  or  inherit  land.  Blackstone,  however,  points  out  they 
could  purchase  land  but  the  moment  they  did  so  it  was  liable  to 
be  forfeited  to  the  sovereign  (2  Blackstone  293).  The  harshness 
of  this  rule  has  been  greatly  relaxed  and  in  most  states  the 
alien  friend  is  now  under  no  disability.  In  Pennsylvania,  by 
statute  (Act  Feb.  28,  1791,  3  Sm.  L.  4)>  anen  friends  may  take 
by  descent  without  limit.  But  under  the  Act  of  May  1,  1861, 
they  are  permitted  to  hold  by  purchase  only  5,000  acres  and  not 
exceeding  $20,000  in  net  annual  value  (P.  L.  433)-  Up  to  this 
limit  they  may  take,  hold  and  convey  as  freely  as  a  native  born 
or  a  naturalized  citizen. 

29.  Person  of  Unsound  Mind. 

This  heading  should  be  taken  to  include  not  only  lunatics  but 
idiots  and  all  persons  of  unsound  mind.  The  law  presumes  every 
one  sane  and  the  burden  is  upon  him  who  seeks  to  establish 
the  want  of  sufficient  mental  capacity  to  execute  a  deed  and 
such  incapacity  must  be  established  beyond  a  reasonable  doubt 
(In  re  Gangwere's  Estate,  14  Pa.  417).  In  most  jurisdictions, 
laws  have  been  enacted  providing  for  methods  in  which  a  per- 
son may  be  legally  adjudged  insane,  and  such  a  decree  when 
made  is  conclusive  and  binding  upon  all  the  world  and  renders 
deeds  of  the  lunatic  absolutely  void.  By  Pennsylvania  statutes 
the  appointment  of  a  committee  after  inquisition  or  a  guardian 
by  the  court,  is  a  decree  which  establishes  the  lunacy  of  the  party 
absolutely  and  from  that  time  all  capacity  to  contract  is  gone  and 


38  Conveyancing  in  Pennsylvania. 

his  deed  is  absolutely  void  (Imhoff  v.  Witmer,  31  Pa.  243).  The 
inquisition  and  decree  are  recorded  and  this  is  notice  to  all  the 
world  of  the  party's  insanity  and  incapacity  to  contract.  The 
law  also  provides  that  it  is  the  duty  of  the  commissioner  and  jury, 
sitting  to  determine  the  lunacy,  to  find  how  long  the  party  has 
been  insane  and  if  he  has  lucid  intervals.  During  the  period 
from  the  time  of  the  commencement  of  insanity  so  found  to  the 
time  of  the  decree,  there  is  a  presumption  that  the  party  was 
without  capacity  to  contract,  but  this  presumption  may  be  over- 
come by  proof  that  the  contract  or  deed  was  made  in  a  lucid 
interval.  Where  the  party  has  never  been  legally  declared  insane 
the  question  of  whether  he  was  or  was  not  insane  at  the  time  of 
the  execution  of  the  deed  is,  of  course,  a  question  of  fact  to  be 
decided  by  the  jury,  the  burden  being  upon  him  who  seeks  to  set 
the  deed  aside.  The  several  acts  of  assembly  give  to  the  com- 
mittee of  the  lunatic  all  the  powers  necessary  to  manage  his  estate, 
but  the  real  estate  cannot  be  sold  or  mortgaged  without  authority 
from  the  court. 

30.  Habitual  Drunkards. 

Drunkenness  is  really  a  species  of  temporary  mental  derange- 
ment. To  relieve  himself  from  a  contract  or  deed  made  while 
intoxicated  a  party  must  prove  that  he  was  so  drunk  as  not  to 
know  what  he  was  doing.  The  deed  of  a  person  executed  while 
drunk  is  not  void  but  voidable,  t.  e.,  it  may  be  confirmed  or  made 
good  when  the  grantor  becomes  sober.  To  set  the  deed  aside  he 
must  disavow  it  promptly ;  otherwise  the  law  presumes  he  means 
to  ratify  it.  Where,  however,  a  person  is  habitually  intoxicated 
and  is  declared  an  habitual  drunkard  by  decree  of  court,  then 
he  is  in  the  same  position  as  a  person  adjudged  a  lunatic,  and  all 
his  deeds  are  void. 

31.  Weakness  of  Mind  and  Senility. 

Mere  weakness  of  mind  due  to  old  age,  accident  or  disease 
is  not  of  itself  sufficient  to  set  aside  a  deed  (Nace  v.  Boyer,  30 
Pa.  99;  Kleckner  v.  Kleckner,  212  Pa.  518;  there  must  be 
some  fraud  or  mistake  before  a  formal  instrument  such  as  a  deed 
can  be  set  aside.  However,  the  court  is  alert  to  protect  the  aged 
or  weak-minded  and  the  chancellor  will  usually  seize  on  slight 
circumstances  of  fraud  to  set  aside  a  deed  so  secured  (Hettrick's 
Appeal,  58  Pa.  477).    In  Pennsylvania,  by  the  Act  of  May  28, 


Alienation.  39 

1907,  P.  L.  290,  a  method  of  protecting  the  property  of  the  aged 
and  weak-minded  is  now  provided.  Upon  proper  application 
made  to  the  court,  by  petition  filed  setting  forth  that  the  party 
is  unable  by  reason  of  insanity,  f eeble-mindedness  or  other  mental 
defectiveness  from  taking  care  of  his  property,  the  court  will  fix 
a  time  for  a  hearing,  and  if  convinced  that  the  allegations  of 
the  petition  are  correct  will  appoint  a  guardian  to  protect  and 
conserve  the  estate  of  such  person.  Such  guardian  has  the  same 
powers  and  is  subject  to  the  same  duties  as  a  committee  on  lunacy. 

32.     Infants. 

An  infant  in  a  legal  sense  is  a  person  under  twenty-one  years 
of  age.  The  law  provides  that  an  infant  cannot  make  a  contract, 
the  theory  being  that  he  is  too  immature  and  must  be  protected 
against  his  own  folly.  There  is  a  certain  exception,  viz:  that 
he  may  contract  for  necessaries.  But  for  our  purpose  we  may 
disregard  this.  Remembering  that  his  disability  results  from  his 
incapacity  to  contract,  it  follows  he  can  neither  contract  to  acquire 
title  by  deed  nor  convey  it  by  deed.  He  may,  however,  acquire 
title  by  deed  of  gift  or  by  devise  or  by  descent  since  in  such  cases 
no  capacity  to  contract  is  required.  The  deed  of  an  infant 
is  not  void  but  voidable  and  he  has  it  in  his  power  when  he  reaches 
the  age  of  twenty-one  years  to  either  ratify  his  deed,  in  which 
event  it  becomes  good,  or  disaffirm  it  in  which  event  it  becomes 
void  absolutely ;  but  he  must  do  one  or  the  other  within  a  reason- 
able time  after  he  arrives  at  the  age  of  twenty-one  years,  else 
the  law  presumes  his  failure  to  act  to  be  a  ratification  (Dolph  v. 
Hand,  156  Pa.  588).  The  contract,  however,  is  voidable  only 
on  the  part  of  the  infant.  An  adult  party  with  whom  the  contract 
is  made  is  bound.  Upon  disaffirmance  an  infant  should  return 
the  purchase  money  received  for  the  property,  but  if  he  has 
spent  or  lost  it,  his  action  in  disaffirming  is  nevertheless  effectual 
even  though  no  return  can  be  made  for  the  consideration  ( Shaw 
v.  Boyd,  5  S.  &  R.  309;  Ruchezky  v.  DeHaven,  97  Pa.  202). 

33.    Persons  TJnder  Duress. 

Deeds  made  by  persons  under  duress  are  voidable  and  may  be 
set  aside  by  action  of  the  party  if  done  within  a  reasonable 
time  after  the  removal  of  the  restraint.  By  duress  is  meant  some 
undue  compulsion  such  as  threats,  actual  violence,  imprisonment, 
which  prevents  the  free  exercise  of  the  will  power  of  a  person 


40  Conveyancing  in   Pennsylvania. 

and  makes  him  execute  the  deed  or  contract  through  fear  alone. 
A  person,  however,  is  supposed  to  possess  ordinary  firmness 
unless  it  is  shown  by  reason  of  age  or  other  sufficient  cause  he 
is  weak  or  infirm.  The  constraint  that  takes  away  free  agency 
must  be  one  that  is  imminent  and  without  immediate  means  of 
protection,  and  such  as  would  operate  upon  the  mind  of  a  person 
of  reasonable  firmness  (Sulzner  v.  Cappeau  Lemly,  Etc.,  Co.,  234 
Pa.  162). 

34.     Married  Woman. 

At  common  law  a  married  woman  was  under  many  disabilities 
for,  as  said  by  Mitchell  (Real  Estate  &  Conveyancing  in  Penna. 
by  E.  C.  Mitchell  372),  "at  common  law  the  husband  and  wife 
were  one  person  and  that  one  was  the  husband."  In  Pennsyl- 
vania, step  by  step  married  women's  rights  were  increased  until 
the  Act  of  June  8,  1893  (P.  L.  344,  sec.  5),  completed  her 
emancipation.  That  act  provided,  "Hereafter  a  married 
woman  shall  have  the  same  right  and  power  as  an  unmarried 
person  to  acquire,  own,  possess,  control,  use,  lease,  sell  or 
otherwise  dispose  of  any  property  of  any  kind,  real,  personal 
or  mixed  and  either  in  possession  or  expectancy  and  may  exercise 
the  said  right  and  power  in  the  same  manner  and  to  the  same 
extent  as  an  unmarried  person,  but  she  may  not  mortgage  her 
real  property  unless  her  husband  joins  in  such  mortgage  or  con- 
veyance. The  second  section  of  the  act  provides,  "Hereafter  a 
married  woman  may  in  the  same  manner  and  to  the  same  extent 
as  an  unmarried  person  make  any  contract  in  writing  or  other- 
wise which  is  necessary,  appropriate,  convenient  or  advantageous 
to  the  exercise  and  enjoyment  of  the  rights  and  powers  granted 
by  the  foregoing  section,  but  she  may  not  become  accommodation 
indorser,  maker,  guarantor  or  surety  for  another,  and  she  may 
not  execute  or  acknowledge  a  deed  or  other  written  instrument 
conveying  or  mortgaging  her  real  property  unless  her  husband 
joins  her  in  such  mortgage  or  conveyance."  This  act  is  so  clear 
as  to  require  little  or  no  explanation.  With  the  exception  of  her 
inability  to  mortgage  her  property  without  joinder  of  her  hus- 
band and  her  inability  to  become  accommodation  indorser,  maker 
of  a  note,  guarantor  or  surety  for  another,  she  may  do  whatever 
an  unmarried  woman  may  do.  As  Chief  Justice  Paxson  said  in 
Milligan  v.  Phipps,  153  Pa.  208,  "It  (the  Act  of  June  8,  1893)  has 
emancipated  her  from  the  shackles  of  the  common  law  so  far 


AUENATION.  41 

as  her  separate  property  is  concerned,  and  permits  her  to  stand 
alone  and  exercise  her  own  judgment." 

Conveyance  by  a  Husband  Direct  to  Wife. — After  the  passage 
of  these  married  women's  property  acts,  it  was  a  question  in  doubt 
as  to  whether  a  wife  could  convey  direct  to  her  husband  if  made 
bona  fide  and  without  seeking  to  defraud  creditors.  The  matter 
is  now  settled  that  she  can.  Although  it  was  necessary  for  the 
legislature  to  pass  an  act  (Act  of  June  3,  191 1,  P.  L.  631)  so 
declaring  in  order  to  overrule  the  recent  case  of  Alexander  v. 
Shallala  (228  Pa.  297),  which  had  held  she  could  not.  The  Act 
of  191 1  provides  "That  it  shall  be  lawful  for  a  married  woman 
to  make  conveyances  of  real  estate  to  her  husband  as  if  she 
were  a  feme  sole"  and  also  that  "all  conveyances  of  real  estate 
heretofore  made  by  any  married  woman  to  her  husband,  which 
had  been  duly  signed,  acknowledged  and  delivered  by  her  are 
hereby  validated  and  made  good  in  law."  The  Superior  Court, 
however,  in  a  recent  decision  has  declared  the  last  clause  of  this 
act  to  be  inoperative,  on  the  ground  that  the  attempt  of  the  legis- 
lature to  validate  deeds  made  by  married  women  direct  to  the  hus- 
band before  the  passage  of  the  act,  disturbed  vested  titles  and 
was,  therefore,  unconstitutional  (Buchanan  v.  Corson,  Opin.  filed 
Oct.  14,  1912,  will  probably  be  reported  in  52  Pa.  Super.).  This 
decision  only  renders  the  last  clause  of  the  act  ineffective,  the  first 
clause  permitting  such  conveyances  in  the  future,  still  stands. 

While  the  right  of  a  wife  to  convey  to  her  husband  direct  had 
been  a  vexed  question  until  settled  as  above,  it  had  been  long 
settled  on  the  other  hand  that  a  husband  might  not  only  convey 
directly  to  his  wife  for  a  valuable  consideration  but  he  might 
also  convey  to  her  as  a  gift  when  not  prejudicial  to  his  creditors 
(Reagle  v.  Reagle,  179  Pa.  89;  Mitchell  v.  Phillips,  236  Pa.  311). 
It  has  always  been  considered  the  better  practice  in  either  case  to 
have  the  married  person  convey  to  a  third  party  who  in  turn  con- 
veys to  the  husband  or  wife. 

35.    Feme  Sole  Traders. 

A  feme  sole  trader  is  a  married  woman  authorized  by  statute 
under  certain  conditions  to  carry  on  business  and  trade  as  though 
she  were  sole  or  unmarried.  In  Pennsylvania,  the  Act  of  May 
4,  1855,  P.  L.  430,  sec.  2,  provides  "that  whenever  her  husband 
from  drunkenness,  profligacy  or  other  cause  shall  neglect  or 
refuse  to  provide  for  her  or  shall  desert  her, and  her  prop- 


42  Conveyancing  in   Pennsylvania. 

erty  real  and  personal  howsoever  acquired,  shall  be  subject  to 
her  free  and  absolute  disposal  during  her  life  or  by  will,  with- 
out any  liability  to  be  interfered  with  or  obtained  by  her  husband, 
and  in  case  of  her  intestacy  shall  go  to  her  next  of  kin  as  if  he 
were  previously  dead."  For  some  time  there  was  considerable 
doubt  as  to  whether  this  act  gave  a  feme  sole  trader  the  right 
to  convey  a  clear  title  without  joinder  of  her  husband,  but 
it  has  now  been  settled  that  she  can  (Elsey  v.  McDaniel, 
95  Pa.  472;  Simons'  Estate,  20  Superior  Ct.  450).  Not  only 
can  she  make  a  deed  as  though  unmarried,  but  she  can 
also  mortgage  (Heddens'  Appeal,  17  Atlan.  Rep.  29)  her  prop- 
erty without  joinder  of  her  husband.  It  is  not  necessary  for  her 
to  be  actually  declared  by  decree  of  court  to  be  a  feme  sole 
trader  but  the  better  practice  and  safer  plan  is  to  have  her  so 
decreed  and  then  to  recite  that  fact  in  the  deed  of  conveyance 
(Ellison  v.  Andersen,  no  Pa.  486).  If  never  declared  a  feme 
sole  trader,  the  facts  that  bring  her  within  the  provisions  of  the 
Act  of  May  4,  1855,  should  be  recited  in  the  instrument  of  con- 
veyance, although  failure  to  do  so  will  not  invalidate  the  instru- 
ment (Forman  v.  Hosier,  94  Pa.  418). 

36.     Fiduciaries. 

By  a  fiduciary  we  mean  one  who  occupies  a  relation  of  trust  and 
confidence  with  another.  The  fiduciaries  which  we  will  briefly 
consider  are:  Trustee,  Executor,  Administrator  and  Guardian 
(Pennsylvania  Conveyancing,  by  Christopher  Fallon,  91).  Mr. 
Fallon,  in  his  very  complete  book  on  conveyancing,  says :  "Gen- 
erally speaking,  trustees,  including  guardians,  executors  and  as- 
signees, have  no  power  to  sell  or  convey  land  unless  authorized 
and  empowered  by  the  instrument  of  appointment  or  under  the 
direction  of  the  court  having  jurisdiction  over  the  trust."  If 
there  is  more  than  one  trustee  or  guardian  all  must  join  in  the 
deed.  Where  the  instrument  which  creates  the  trust  defines  and 
prescribes  any  manner  in  which  it  is  to  be  executed  that  method 
must  be  strictly  followed.  Before  accepting  a  deed  from  a 
fiduciary  a  purchaser  must,  at  his  peril,  ascertain  the  extent 
of  the  trustee's  power.  As  Fallon  further  says,  "A  deed  simply 
to  AB,  trustee,  without  stating  for  whom  or  for  what  does  not 
afford  such  an  opportunity  and  is  to  be  considered  bad  convey- 
ancing." The  Golden  Rule  to  be  followed  is :  Look  to  the  instru- 
ment defining  the  powers  of  the  trustee.    In  Bayard  v.  Farmers' 


Alienation.  43 

and  Mechanics'  Nat.  Bank,  52  Pa.  237,  the  court  said :  "No  pur- 
chaser either  of  land  or  personally  would  be  safe  in  buying  from 
a  known  trustee  withput  looking  at  the  nature  and  extent  of  his 
trust.  It  is  true  a  trustee  may  have  power  to  sell,  but  the  power 
is  not  a  necessary  incident  to  his  trust,  as  it  is  to  the  office  of  an 
executor.  He  may  have  the  legal  title  yet  no  authority  to  sell. 
His  sale  may  be  entirely  authorized  by  the  instrument  which 
created  the  trust;  it  may  have  been  forbidden."  In  Pennsyl- 
vania, the  Act  of  March  14,  1849,  P.  L.  164,  authorizes  executors, 
trustees,  etc.,  to  make  either  public  or  private  sales  where  not 
specifically  directed.  If  a  public  sale  is  directed,  only  a  public  sale 
can  be  made  and  a  private  one  will  carry  no  title  (McCreery  v. 
Hamlin,  7  Pa.  87). 

On  the  ground  of  public  policy  executors  and  trustees  cannot 
purchase  at  their  own  sale.  But  such  a  sale,  if  not  avoided  by 
the  parties  for  whose  benefit  the  trusts  exist,  may  be  made  good 
by  their  ratification.  If  a  trustee  desires  to  buy  or  bid  at  his 
own  sale  he  should  make  application  to  the  court  (Act  May  22, 
1878,  P.  L,  83). 

An  executor  has  no  power  or  right  over  real  estate  unless  the 
power  be  given  him  in  the  will,  or  unless  the  personal  property 
is  not  sufficient  to  pay  the  decedent's  debts,  in  which  case  the 
executor  may  make  application  to  the  orphans'  court  for.  leave 
to  sell  the  decedent's  real  estate  to  pay  debts.  So  also  an  adminis- 
trator has  no  power  or  control  over  real  estate  unless  the  personal 
property  is  not  sufficient  to  pay  debts  in  which  case  he  may,  as  in 
the  case  of  the  executor,  petition  the  orphans'  court  for  leave  to 
sell  the  real  estate.  In  either  case  the  authority  of  the  fiduciary 
selling  or  the  decree  of  the  court  authorizing  him  to  sell  should  be 
set  forth  in  the  deed  (See  form  of  Executor's  Deed,  Paragraph 
232.) 

SECTION  II.     ASSOCIATIONS  OF  INDIVIDUALS. 

37.    The  Commonwealth  or  the  State. 

Turning  now  to  associations  of  individuals  that  may  acquire, 
hold  and  convey  title  we  will  consider,  first,  The  State  or  Com- 
monwealth; second,  Corporations;  third,  Unincorporated  Socie- 
ties; fourth,  Partners. 

The  Commonwealth,  i.  e.,  the  State,  may  purchase,  hold,  sell, 
convey,  lease  and  mortgage  land  like  any  person.  It  can  gain 
title  by  adverse  possession  but  cannot  lose  it  in  that  way.    The 


44  Conveyancing  in   Pennsylvania. 

Statutes  of  Limitations  do  not  run  against  the  Commonwealth 
and  no  one  can  gain  title  by  adverse  possession  against  it  ( Bagley 
v.  Wallace,  16  S.  &  R.  245;  Com.  v.  Baldwin,  1  Watts  54).  The 
Commonwealth  has  the  further  power  to  take  land  for  public 
purposes  except  as  restricted  by  the  Constitution,  and  to  delegate 
this  right  to  certain  public  corporations  as  provided  by  law.  This 
power  to  take  land  from  individuals  against  their  wishes  is  called 
the  right  of  eminent  domain.  The  Constitution  provides  that  just 
compensation  must  be  made  to  the  owners  and  the  various  states 
have  prescribed  methods  laid  down  by  law  which  must  be  care- 
fully followed  when  the  right  is  exercised. 

38.     Corporations. 

Corporations  have  only  such  right  to  hold  and  alien  land  as  is 
given  them  by  the  authority  that  creates  them,  i.  e.,  the  State.  In 
Pennsylvania,  the  preamble  of  the  Act  of  April  6,  1833  (P.  L. 
167),  sets  forth  that  "no  corporation  either  of  this  state  or  of  any 
other  state  though  lawfully  incorporated  or  constituted  can  in  any 
case  purchase  lands  within  this  State  either  in  its  corporate  name 
or  names  of  any  person  or  persons  whomsoever  for  its  use, 
directly  or  indirectly,  without  incurring  the  forfeiture  of  said 
lands  to  this  Commonwealth  unless  such  purposes  be  sanctioned 
or  authorized  by  an  act  of  legislature."  But  while  a  corporation 
has  not  the  power  to  purchase  land  except  to  the  extent  authorized 
by  law,  still  as  to  such  land  as  the  law  authorizes  it  to  hold,  it  may 
alienate  and  dispose  of  it  as  fully  and  freely  as  an  individual  may 
do  in  respect  to  his  own  property  (Ardisco  v.  N.  A.  Oil  Co.,  66  Pa. 
375).  Prior  to  the  Constitution  of  1874,  each  corporation  was 
created  by  special  act  of  assembly  and  its  right  to  hold  land 
was  specified  in  the  creating  act.  In.  1874  the  legislature  passed 
a  general  corporation  act  which  divided  all  corporations  into 
two  classes:  Corporations  for  profit  and  corporations  not  for 
profit.  The  former  are  chartered  by  the  Governor  of  the  State 
and  the  latter  by  the  courts.  Both  classes  of  corporations  are 
authorized  to  hold,  purchase  and  transfer  such  real  estate  as 
the  purposes  of  the  corporation  require,  not  exceeding  the  amount 
limited  by  its  charter  or  by  law."  Section  6  of  Article  XVI  of 
the  Constitution  stipulates  that  a  corporation  shall  not  take  or 
hold  any  real  estate  except  such  as  is  necessary  and  proper  for 
its  legitimate  business. 


AUE  NATION.  45 

The  title  to  real  estate  conveyed  to  a  corporation  not  authorized 
to  hold  it  is  defeasible  only  at  the  pleasure  of  the  Commonwealth. 
The  Commonwealth  must  commence  the  proceedings ;  not  anyone 
who  chooses  to  interfere  (Pittsburg  R.  R.  Co.  v.  Allegheny,  63 
Pa.  127).  If  the  Commonwealth  fails  to  forfeit  the  land  while 
held  by  the  corporation,  and  thereafter  the  corporation  trans- 
fers the  land  to  an  individual,  the  individual  takes  a  good  in- 
defeasible title  (Act  of  June  15,  1897,  P.  L.  164).  Thus,  while 
a  corporation  may  not  hold  title  it  can  nevertheless  pass  a  good 
title  to  a  purchaser  if  done  before  forfeiture  proceedings  are 
commenced. 

39.    Foreign  Corporations. 

By  foreign  corporations  are  meant  such  as  are  chartered  in  an- 
other State,  e.  g.,  a  corporation  chartered  under  the  laws  of  New 
Jersey  would  be  a  foreign  corporation  in  Pennsylvania.  Foreign 
corporations  have  no  rights  outside  of  the  jurisdiction  which 
created  them  except  such  as  may  be  given  them,  by  the  sov- 
ereignty in  whose  domains  they  seek  to  carry  on  business  (Van 
Steuben  v.  Central  R.  R.  Co.,  178  Pa.  367).  In  fact,  a  foreign 
corporation  may  be  excluded  from  the  jurisdiction  of  a  state 
altogether.  They  are,  however,  usually  admitted  on  terms,  but 
they  should  comply  strictly  with  the  general  law  providing  for 
the  conduct  of  foreign  corporations  doing  business  in  the  state 
(See  Act  of  June  8,  191 1,  P.  L.  710,  as  to  Registration  Require- 
ments of  Foreign  Corporations).  In  general,  foreign  corpora- 
tions may  hold  no  land  in  Pennsylvania.  Such  as  they  hold 
escheats,  i.  e.,  is  forfeited  to  the  state.  Certain  foreign  corpora- 
tions are  excepted,  however,  and  are  allowed  to  hold  a  limited 
amount  of  land  (100  acres)  if  necessary,  for  the  purpose  of 
their  business.  These  corporations  so  excepted  are  foreign  cor- 
porations engaged  in  the  business  of  and  formed  for  the  purpose 
of  the  manufacture  of  any  form  of  iron,  steel,  glass,  lumber  or 
wood,  or  for  the  conversion,  dyeing  and  cleaning  of  cotton  or 
velvet  or  other  fabrics,  of  and  for  the  manufacture  of  pyroligne- 
ous  acids,  acetate  of  lime  and  charcoal  by  the  process  of  de- 
structive distallation,  or  preparation  of  cattle  hair  for  use,  or  for 
the  manufacture  of  carbon  dioxide  and  magnesia  and  the  products 
thereof  and  compositions,  articles  and  apparatus  from  and  in 
connection  therewith,  or  for  the  manufacture  of  extracts  of  wood, 
bark,  leaves  and  roots,  or  any  other  extract  for  tanning,  cleaning, 


46  Conveyancing  in  Pennsylvania. 

dyeing  or  other  purposes,  or  for  the  manufacture  or  printing  of 
wall  paper,  lithographs  or  prints,  and  mining  and  manufacturing 
of  any  clay  into  brick,  tile  and  various  other  articles  and  products 
produced  from  clay  and  from  clay  and  other  substances  mixed 
therewith,  to  erect  and  maintain  buildings  for  such  manufacturing 
purposes,  and  for  offices  and  salesrooms,  or  either,  within  the 
commonwealth,  and  to  take,  have  and  hold  real  estate  not  exceed- 
ing one  hundred  acres  necessary  and  proper  for  such  manufac- 
turing purposes  and  for  offices,  dwellings  and  salesrooms,  or 
either,  and  to  mortgage,  bond,  lease  or  convey  the  same  or  any 
part  thereof  (Act  of  June  8,  1893,  sec.  1,  P.  L.  389,  amending 
and  supplementing  Acts  of  April  13,  1891,  P.  L.  39,  April  28, 
1887,  P.  L.  77,  June  25,  1885,  P.  L.  179,  June  9,  1881,  P.  L.  89). 
Also  foreign  corporations  formed  for  the  manufacture  of  any 
form  of  iron,  steel,  paper,  wood  pulp,  chemical  fibre  or  glass, 
or  for  the  quarrying  of  slate,  granite,  cement  rock,  stone  or  rock 
of  any  kind,  or  for  the  dressing,  polishing  or  manufacturing  the 
same  or  any  of  them,  or  for  any  mineral  springs  company  incor- 
porated for  the  purpose  of  bottling  and  selling  natural  min- 
eral springs  water,  or  any  company  incorporated  for  the  purpose 
of  manufacturing,  supplying  and  sale  of  ice  or  manufacturing  and 
selling  garden  and  horticultural  implements,  and  dealing  in  seeds, 
plants,  bulbs  and  flowers,  or  for  the  manufacture  of  and  sale  of 
foodstuffs  and  eatables,  cement  and  cement  products,  and  the 
quarrying  of  cement  rock,  or  for  the  manufacture,  buying,  sell- 
ing, leasing,  using  and  operation  of  electrical  apparatus  and  ma- 
chinery, and  articles  of  every  kind  appertaining  to  or  in  any  wise 
connected  with  the  production,  use,  regulation,  control,  distribu- 
tion, or  application  of  electricity,  or  electrical  energy  or  products, 
for  any  use  or  purpose,  constructing,  acquiring,  using,  selling, 
buying  or  leasing  any  works,  construction,  or  plant,  or  any  part 
thereof,  connected  with,  or  involving  such  use,  distribution,  regu- 
lation, control,  or  application  of  electricity,  or  the  control  or  use 
of  electrical  apparatus  for  any  purpose,  and  of  producing,  fur- 
nishing, and  supplying  electricity  or  electrical  apparatus  in  any 
form  and  for  any  purpose,  and  to  carry  on  a  general  manufac- 
turing business  are  authorized  by  law,  to  erect  and  maintain 
buildings  and  manufacturing  establishments  within  the  Common- 
wealth and  to  take,,  have  and  hold  real  estate  to  an  amount  nec- 
essary and  proper  for  corporate  purposes  (Act  of  April  19,  1901, 
P.  L.  86,  as  amended  and  supplemented  by  the  Acts  of  May  28, 


Alienation.  47 

1907,  P.  L.  266,  April  27,  1909,  P.  L.  173,  April  20,  191 1,  P.  L. 
68,  June  23,  191 1,  P.  L.  1115)- 

Also  foreign  corporations,  the  net  profits  of  which  are  required 
by  its  charter  to  be  applied  to  religious  and  charitable  uses, 
engaged  in  this  State  in  the  publication  and  sale  of  books,  tracts, 
newspapers,  periodicals  and  such  other  business  commonly  con- 
nected with  publishing  and  book-selling,  who  have  a  duly  au- 
thorized agent  or  agents  as  required  by  existing  laws  for  the 
purpose  of  carrying  on  business  may  take,  hold  and  enjoy  real 
estate  either  in  its  corporate  name  or  in  the  name  of  trustees 
or  agents  to  an  amount  not  exceeding  twenty  thousand  dollars 
in  clear  yearly  value  or  income  and  to  mortgage  or  convey  the 
same  or  any  part  thereof  and  to  lease  any  part  of  the  buildings 
erected  thereon  not  requisite  for  the  transaction  of  their  business 
(Act  of  June  24,  1895,  P.  L.  238). 

Also  foreign  corporations  formed  for  the  purpose  of  trans- 
portation of  passengers  and  freight  by  steamboats  or  other 
vessels,  upon  or  over  any  river  or  waters  between  this  State  and 
any  other  state,  may  lease,  erect  or  purchase  offices,  piers,  ware- 
houses and  other  buildings  necessary  for  its  business,  and  to  hold 
in  this  State,  either  in  its  corporate  name  or  by  a  trustee  or 
trustees  real  estate  necessary  for  the  transaction  of  its  business, 
to  lease,  erect  or  purchase  and  maintain  any  riparian  rights  for 
the  laying,  landing  or  dockage  of  its  steamboats  or  other  vessels 
and  mortgage  and  carry  said  real  estate  or  any  part  thereof  (Act 
of  April  17,  1889,  P.  L.  35). 

Also  foreign  corporations  incorporated  for  the  purpose  of  the 
establishment,  maintenance  and  continuance  of  a  ferry  or  bridge 
between  this  State  and  any  other  state  may  hold,  erect  and 
maintain  piers,  offices,  warehouses  and  all  other  buildings  and 
structure  necessary  for  the  maintenance  of  such  ferry  or  bridge 
and  conducting  the  freight  and  passenger  business  to  be  moved 
thereby,  and  may  hold,  mortgage,  lease  or  convey  such  real  estate 
necessary  for  said  purposes  (Act  of  June  6,  1887,  P.  L.  352)- 

Also  foreign  corporations  may  ljold  and  convey  not  exceeding 
three  hundred  acres  of  land  in  the  Commonwealth  for  mining 
purposes  (Act  of  July  22,  1863,*  sec.  2,  P.  L.  [1864]   1098). 


*But  this  act  was  repealed  two  years  later  by  the  Act  of  April  23,  1865, 
P.  L.  32,  which,  however,  expressly  provided  that  any  rights  acquired  be- 
fore the  repeal  should  not  be  impaired. 


48  Conveyancing  in   Pennsylvania. 

Also  foreign  corporations,  or  joint  stock  companies  or  associa- 
tions, formed  for  the  purpose  of  carrying  on  the  business  of 
insurance,  are  authorized  to  take,  hold  and  enjoy  in  any  part  of 
this  Commonwealth  either  in  its  corporate  name  or  by  trustees, 
real  estate  and  premises  in  which  the  business  is  carried  on  and 
to  mortgage  or  convey  the  same  and  to  lease  any  part  of  the 
buildings  erected  thereon  not  requisite  for  the  transaction  of 
their  said  business  (Act  of  June  I,  1881,  sec.  1,  P.  L.  38). 

There  is  one  other  exception  to  the  general  rule  that  foreign 
corporations  can  hold  no  land  in  Pennsylvania,  and  that  is,  that 
they  may  under  the  Act  of  May  23,  1887  (P.  L.  176),  purchase 
such  real  estate  at  a  sheriff's  sale  as  may  be  necessary  to  pro- 
tect their  lien,  but  real  estate  so  bought  must  be  disposed  of  in 
ten  years  from  date  of  purchase.*  The  Act  of  June  23,  191 1, 
P.  L.  1 1 14,  gives  to  foreign  corporations  properly  registered  but 
not  entitled  to  hold  real  estate  the  right  to  convey  away  such 
property  as  they  may  have  acquired  before  passage  of  this  act 
free  from  any  escheat  claim  of  the  Commonwealth. 

Right  of  Corporations  to  Mortgage  in  Pennsylvania. — Such 
corporations  as  may  hold  real  estate  may  mortgage  their  hold- 
ings. Originally  this  could  be  done  as  freely  as  an  individual, 
but  since  the  Constitution  of  1874,  certain  conditions  and  restric- 
tions must  be  complied  with  as  set  forth  in  the  General  Cor- 
poration Act  of  1874,  certain  conditions  and  restrictions  must  be 
complied  with  as  set  forth  in  the  General  Corporation  Act  of 
1874  (Act  of  April  29,  P.  L.  73),  and  its  supplements,  and  the  Act 
of  May  21,  1889,  P.  L.  257). 

40.    Unincorporated  Societies  and  Churches. 

Unincorporated  associations  or  societies  in  general  cannot  hold 
or  alien  land  in  the  society  name,  but  the  title  will  be  treated  as 
being  in  individual  members  just  as  in  a  partnership.  There  is, 
however,  an  exception  in  the  case  of  charitable  and  religious 
societies  and  churches  ( Phipps  v.  Jones,  20  Pa.  263 ;  Burton's 
Appeal,  57  Pa.  217).  The  title  remains  in  the  charitable  society 
or  church  and  where  there  is  a  split  in  the  congregation  the  title 
to  the  property  is  adjudged  to  be  in  that  part  of  the  congregation 
which  is  in  harmony  with  the  laws  and  customs  accepted  by  the 


*The  time  limit  of  this  act  was  extended  for  five  years  by  Act  of  June 
8,  1897,  P.  L.  136,  and  again  for  five  years  by  the  Act  of  February  5,  1903, 
P.  L-  4- 


Alienation.  49 

whole  body  before  the  division  took  place  (Landis'  Appeal,  102 
Pa.  467;  Krecher  v.  Shirey,  163  Pa.  534). 

41.    Partners. 

Real  estate  held  by  partners  for  the  purpose  of  the  business  is 
regarded  in  law  as  forming  part  of  the  assets  and  hence  treated 
as  personal  property  (West  Hickory  Asso.  v.  Reed,  80  Pa.  38). 
The  question  often  arises  whether  real  property  purchased  jointly 
was  intended  to  be  firm  property.  The  Supreme  Court  in  Penn- 
sylvania has  held  that  the  mere  fact  of  taking  the  property  in 
the  joint  names  will  not  make  it  partnership  property  (Stover  v. 
Stover,  180  Pa.  425;  Cundey  v.  Hall,  208  Pa.  335).  To  avoid 
this,  the  fact  that  the  land  is  purchased  by  the  firm  for  the  use  of 
the  firm's  business,  should  be  set  out  in  the  deed  or  some  instru- 
ment in  writing  duly  filed  of  record  so  that  individual  creditors 
be  not  deceived  (Gunison  v.  Dime  Savings  Bk.,  157  Pa.  303; 
Cundey  v.  Hall,  208  Pa.  335). 


CHAPTER  IV. 

Methods  of  Acquiring  Title  by  Purchase.     Instruments 
of  Conveyancing.    Agreements  of  Sale. 

Page.  Page 

section  i.  47.  Acknowledgment  of  Agree- 
agreements  OF  sale.  ment    of    Sale.      Record- 

42.  What   it   Is.     Definition    . .     50  ing    59 

43.  Must  be  in  Writing.    Penn-  48.  Legal  Effect  of  Agreement 

sylvania     Statute     of  "of  Sale   59 

Frauds  51       49-  Extinction  of  Agreement  of 

44.  What    the    Writing    Must  Sale    60 

Contain.     Form   52       50.  Suggestions      in      Drawing 

45.  Meaning  of  Various   Parts     54  Agreements  of  Sale  60 

46.  Execution  of  Agreement  of 

Sale,  Signature  by  Agent    59 

We  will  now  consider  the  modern  methods  of  conveying.  It 
is  generally  known  that  the  actual  transfer  or  conveyance  of  title 
to  land  is  made  by  an  instrument  called  a  deed.  But  before  we 
come  to  the  deed  there  must  have  been  an  agreement  between 
the  buyer  and  seller  as  to  the  price  to  be  paid  and  other  terms. 
This  agreement  which  for  reasons  to  be  hereinafter  explained 
must  be  in  writing  will  be,  of  course,  therefore,  our  first  consid- 
eration. 

In  order  to  present  the  subject  logically  we  will  consider  instru- 
ments of  conveyancing  in  the  following  order : — 

1.  Agreements  of  Sale. 

2.  Deeds. 

3.  Mortgages. 

4.  Ground  Rents. 

Agreements  of  Sale. 

42.     What  it  is.     Definition. 

Suppose  A  desires  to  buy  B's  property.  After  much  negotia- 
tion both  arrive  at  a  mutual  understanding  and  desire  to  close 
out  the  transaction.  This  understanding  embodies  the  terms  and 
conditions  of  the  sale  and  must  be  in  writing  and  signed  by  the 

50 


Methods  of  Acquiring  Title  by  Purchase.  51 

parties.  An  agreement  of  sale  may,  therefore,  be  defined  as 
an  agreemnt  or  contract  in  writing  wherein  one  party  agrees  to 
sell  and  another  agrees  to  buy  real  estate  under  such  terms  and 
conditions  as  is  therein  set  forth. 

43.     Must  Be  in  Writing.     Pa.  Statute  of  Frauds. 

It  has  been  considered  sound  public  policy  in  all  states  that 
certain  contracts  should  be  required  to  be  made  in  writing.  And 
in  all  common  law  jurisdictions  the  one  kind  of  contract  most 
universally  required  to  be  in  writing  is  the  contract  relating  to 
sale  and  creation  of  interests  in  land.  The  first  statute  requiring 
contracts  concerning  the  sale  and  creation  of  interests  in  land  to 
be  in  writing  was  passed  in  England  in  1676.  As  it  recited  in  its 
preamble  that  its  purpose  was  to  prevent  frauds,  it  has  ever  since 
been  known  as  the  Statute  of  Frauds  and  statutes  of  frauds 
similar  to  a  greater  or  lesser  extent  have  been  re-enacted  in  most 
every  state  of  the  United  States. 

Pennsylvania  Statute  of  Frauds. — The  Pennsylvania  Statute  of 
Frauds  is  the  Act  of  March  21,  1772  (1  Sm.  Laws  389),  which 
provides  that  "all  leases,  estates,  interest  of  freehold  or  term  of 
years  or  any  uncertain  interest  of  in  or  out  of  any  messuages, 
manors,  lands,  tenements  or  hereditaments,  made  or  created  by 
livery  of  seisin  only,  or  parol  and  not  put  in  writing  and  signed  by 
the  parties  as  making  or  creating  the  same  or  their  agents  there- 
unto lawfully  authorized  by  writing  shall  have  the  force  and  effect 
of  leases  or  estates  at  will  only,  and  shall  not  either  in  law  or 
equity,  be  deemd  or  taken  to  have  any  other  or  greater  force  or 
effect,  any  consideration  for  making  any  such  parol  leases  or  es- 
tates or  any  former  law  or  usage  to  the  contrary  notwithstanding, 
except  nevertheless  all  leases  not  exceeding  the  term  of  three  years 
from  the  making  thereof." 

This  part  of  the  statute  deals  with  making  of  leases  and  in 
plainer  words  provides  in  substance  that  leases  for  a  greater 
term  than  three  years  must  be  in  writing.  The  other  part 
of  the  statute  which  concerns  us  now  continues  "And  more- 
over no  leases,  estates  or  interests  either  of  freehold  or  terms 
of  years  or  any  uncertain  interest  of,  in,  to  or  out  of  any  mes- 
suages, manors,  lands,  tenements  or  hereditaments  shall  at  any 
time  be  assigned,  granted  or  surrendered  unless  it  be  by  deed 
or  note  in  writing  signed  by  the  party  so  assigning,  granting  or 


52  Conveyancing  in   Pennsylvania. 

surrendering  the  same  or  their  agents  thereto  lawfully  author- 
ized by  writing  or  by  act  or  operation  of  law." 

This  in  brief  means  that  no  land  or  interest  in  land  shall  be 
assigned,  granted  or  surrendered  unless  in  writing  signed  by  the 
party  or  his  agent  whose  authority  to  do  so  must  also  be  in 
writing.  There  are  some  exceptions  to  the  general  effect  of  the 
statute  such  as  part  performance  of  the  contract,  or  possession 
given  under  an  oral  contract,  but  for  the  purposes  of  this  book 
we  will  disregard  the  exceptions  and  consider  the  general  rule 
to  be  unbending.  The  best  interest  of  clients  can  only  be  served 
by  reducing  all  such  agreements  concerning  real  estate  to  writing. 

44.     What  the  Writing  Must  Contain:    Form. 

That  statute  requires  no  particular  form  (Cadwallader  v. 
App.,  81  Pa.  194,  but  the  memorandum  should  disclose  (a)  the 
interest  of  the  parties,  (b)  the  terms  of  the  sale,  (c)  a  definite 
enough  description  to  identify  the  land,  and  (d)  the  consideration 
or  the  price  to  be  paid.  Any  agreement  which  contains  these 
essentials  would  be  sufficient.  The  agreement  need  not  be  under 
seal  (Colt  v.  Selden,  5  Watts  525).  It  has  been  held  that  a 
receipt  on  account  of  purchase  price,  if  it  contain  these  particu- 
lars, is  sufficient  (Evans  v.  Evans,  29  Pa.  2jj).  The  agreement 
need  only  be  signed  by  the  vendor,  that  is  the  man  who  agrees 
to  sell  land,  although  it  is  customary  and  better  practice  to  have 
the  vendee  to  sign  also.  Where  the  vendor  is  married,  the  hus- 
band or  wife  should  sign  also. 

While  it  is  true  that  no  set  form  is  required,  it  has  become 
customary  to  use  a  form  such  as  the  following : — 

This  Agreement,  made  the  12th  day  of  June,  A.  D.  1908, 
between  Andrew  Black,  of  the  City  of  Philadelphia,  State  of 
Pennsylvania,  and  Charles  Dolan,  also  of  the  City  of  Philadel- 
phia, State  of  Pennsylvania.  WITNESSETH,  that  the  said  party 
of  the  first  part  agrees  to  sell  and  convey  to  the  party  of  the 
second  part,  and  the  party  of  the  second  part  agrees  to  purchase 
all  that  certain  lot  or  piece  of  ground  with  the  messuage  or 
tenement  thereon  erected,  situate  on  the  west  side  of  "Y"  Street, 
at  the  distance  of  337  feet  northward  from  the  north  side  of 
"X"  Street,  in  the  Fiftieth  Ward  of  the  City  of  Philadelphia, 
^containing  in  front  or  breadth  on  the  said  "Y"  Street  18  feet  and 
extending  of  that  width  in  length  or  depth  westward  between  two 
parallel  lines  at  right  angles  with  the  said  "X"  Street  100  feet  to 


Methods  oe  Acquiring  Title  by  Purchase.  53 

a  three  feet  wide  alley  leading  northward  from  "X"  Street  to 
"Z"  Street — or  (premises  No.  1242  Y  Street,  Philadelphia,  Pa.), 
on  the  terms  and  conditions  following,  to  wit,  the  said  party  of 
the  second  part  agrees  to  pay  therefor  the  sum  of  sixty-five 
($6,500)  hundred  dollars  as  follows:  Two  hundred  ($200)  dol- 
lars on  the  signing  of  this  agreement  (which  deposit  it  is  hereby 
agreed  may,  at  the  option  of  the  said  party  of  the  first 
part,  be  retained  by  said  party  as  liquidated  damages  in 
case  of  the  default  by  the  said  party  of  the  second 
part  in  the  performance  of  the  terms  of  this  agreement)  and 
the  balance  of  the  purchase  money  at  the  time  of  the  settlement. 
All  perpetual  policies  of  fire  insurance  to  be  paid  for  at  with- 
drawal value  and  term  policy  at  proportionate  value  for  unex- 
pired term.  The  premises  are  to  be  conveyed  free  and  clear  of 
incumbrance.  The  gas  fixtures,  heaters,  ranges,  etc.,  annexed 
to  the  said  building  are  included  in  the  sale.  Possession  to  be 
given  at  time  of  settlement.  Taxes,  water  rent,  rent  and  interest 
on  incumbrance  (if  any)  to  be  apportioned  for  the  current  term 
at  the  date  of  settlement.  Gas  bills,  if  any,  to  be  paid  by  the 
seller.  The  title  is  to  be  good  and  marketable  and  such  as  will 
be  insured  by  any  title  and  trust  company  of  Philadelphia.  And 
the  said  parties  hereby  bind  themselves,  their  heirs,  executors 
and  administrators,  for  the  faithful  performance  of  the  above 
agreement  within  thirty  days  from  the  date  hereof,  said  time  to  be 
the  essence  of  this  agreement,  unless  extended  by  mutual  consent 
in  writing  endorsed  hereon. 

In  witness  whErEoe,  the  said  parties  have  hereunto  set  their 
hands  and  seals  that  day  and  year  first  above  written. 
Sealed  and  delivered  in  the  pres- 
ence of 
Oscar  Thomas.  Andrew  Black.        (Seal.) 

Wm.  F.  Belsterling.  Charles  Dolan.        (Seal.) 

.      (Seal.) 

— Received  that  day  of  the  date  of  the  within  agreement  the  sum 
of  $200.00  on  account  of  the  purchase  money  named  therein. 

Witness. 
Wm.  F.  Belsterling.  Andrew  Black.     (Seal.) 

On  the  12th  day  of  June,  A.  D.  1908,  before  me  the  subscriber, 
William  F.  Belsterling,  a  notary  public  of  the  Commonwealth  of 
Pennsylvania,  residing  in  Philadelphia,  came  the  within  named 


54  Conveyancing  in  Pennsylvania. 

Andrew  Black  and  Charles  Dolan,  and  acknowledged  the  within 
agreement  to  be  their  act  and  deed  and  desired  the  same  might 
be  recorded  as  such. 

Witness  my  hand  and  seal  the  day  and  year  aforesaid. 

Wm,  F.  Belsterling, 

Notary  Public. 
Commission  expires  Feb.  14,  1910. 

This  agreement  can,  of  course,  be  altered  to  suit  the  terms  of 
the  sale  in  question. 

45.     Meaning  of  the  Various  Parts. 
(a.)   The  Introduction,  to  wit: — 

"Agreement  made  12th  day  of  September,  A.  D.  191 1, 
between  A.  B.,  of  the  City  of  Philadelphia.  State  of 
Pennsylvania,  of  the  first  part,  and  C.  D.,  also  of  said 
City  and  State,  of  the  second  part.    Witnesseth  that  the 
said  party  of  the  first  part  agrees  to  sell  and  convey  to 
the  said  party  of  the  second  part,  and  the  said  party  of 
the  second  part  agrees  to  purchase." 
This  part  of  the  agreement  may  be  called  the  introduction,  and 
its  purpose  is  to  recite  the  names,  identify  the  parties  and  to  state 
what  the  agreement  is  about. 

(b.)  Description. — Then  follows  the  description,  to  wit: — 

All  that  certain  lot  or  piece  of  ground  with  the  build- 
ings and  improvements  thereon  erected,  known  as  No. 
2214  Y  Street,  in  the  City  and  County  of  Philadelphia, 
State  of  Pennsylvania. 
The  description  should  be  definite  enough  to  identify  the  prop- 
erty.   Within  the  city  limits  the  words  "property  situate  No.  2214 
Y  Street,  in  the  City  of  Philadelphia,  State  of  Pennsylvania,"  is 
definite  enough.    Where  there  is  no  street  and  number  then  the 
description  should  be  by  metes  and  bounds  and  copied  from  the 
vendor's  deed,  e.  g.,  as  follows : — 

All  that  certain  lot  or  piece  of  ground  within  the  three- 
story  brick  messuage  or  tenement  thereon  erected,  situ- 
ate on  the  west  side  of  "Y"  Street,  at  the  distance  of  337 
feet  northward  from  the  north  side  of  "X"  Street,  in  the 
Fiftieth  Ward  of  the  City  of  Philadelphia,  containing 
in  front  or  breadth  on  the  said  "Y"  Street,  18  feet  and 
extending  of  that  width  in  length  or  depth  westward  be- 
tween two  parallel  lines  at  right  angles  with  said  "X" 
Street  one  hundred  feet  to  a  three  feet  wide  alley  leading 
northward  from  "X"  Street  to  "Z"  Street. 


Methods  oe  Acquiring  Title  by  Purchase.  55 

(c.)  Terms  and  Conditions. 

The  said  party  of  the  second  part  agrees  to  pay  there- 
for the  sum  of  sixty-five  hundred  ($6,500)   dollars  as 
follows:  Two  hundred  ($200)  dollars  on  the  signing  of 
this  agreement  [which  deposit  it  is  hereby  agreed  may, 
at  the  option  of  the  said  party  of  the  first  part,  be  retain- 
ed by  said  party  as  liquidated  damages  in  case  the  de- 
fault by  the  said  party  of  the  second  part  in  the  per- 
formance of  this  agreement]  and  the  balance  of  the  pur- 
chase money  at  the  time  of  settlement. 
Under  the  law,  if  a  vendee  fails  to  make  settlement  the  vendor 
has  a  choice  of  these  remedies  either  to  tender  deed  and  sue 
for  the  whole  purchase  price  (Tupp  v.  Bishop,  56  Pa.  424),  or 
make  a  bona  fide  private  or  public  resale  and  sue  the  vendee  for 
the  difference  between  the  original  purchase  price  and  that  of  the 
re-sale  (Ashcom  v.  Smith,  2  P.  &  W.  211).    Sometimes,  however, 
the  vendor  would  prefer  to  do  neither  and  would  rather  retain 
the  deposit  money  and  call  the  sale  off,  especially  when  he  thinks 
he  can  sell  it  more  advantageously  later  on.     In  such  event  he 
would  only  be  entitled  to  retain  from  the  deposit  money  his  actual 
damages  which  are  difficult  to  prove,  for  they  only  include  actual 
expenses,  such  as  preparing  the  agreement,  etc.     If  such  actual 
expenses  do  not  equal  the  deposit  money  paid  on  account,  the 
balance  would  have  to  be  returned  to  tHe  vendee  ( See  Lowenstein 
v.  Armstrong,  27  Pa.  Superior  Ct.  543).   Where,  however,  there 
is  such  a  clause  as  that  set  forth  above,  the  law  takes  the  view  that 
the  parties  have  agreed  on  the  deposit  money  as  being  liquidated, 
i.  e.,  determined  damages  which  the  vendor  suffers  by  reason  of 
loss  of  his  bargain.    Such  a  clause  therefor  give  the  vendor  three 
choices,  to  wit :  Tender  deed  and  sue  for  purchase  price.    Resell 
the  property  and  sue  for  his  loss,  or  call  the  sale  off  and  keep  the 
deposit  money  as  his  liquidated  damages.     The  words  "at  the 
option  of  the  said  party  of  the  first  part,"  must  not  be  omitted 
else  the  court  might  take  the  view  that  the  parties  had  agreed 
on  the  forfeiture  of  the  deposit  money  as  the  sole  remedy  in  case 
of  a  breach  (Heckman's  Estate,  236  Pa.  193.    But  see  Cape  May 
Co.  v.  Henderson  231  Pa.  82). 

The  rest  of  this  part  of  the  agreement  relates  to  the  terms 
under  which  consideration  should  be  paid.  The  methods  of  pay- 
ing the  consideration  may  be  as  many  and  varied  as  the  parties 
may  see  fit  to  agree  upon.  For  example,  if  desired  to  purchase 
subject  to  an  existing  mortgage  it  may  be  stated  as  follows : 


56  Conveyancing  in  Pennsylvania. 

The  said  party  of  the  second  part  agrees  to  purchase 
said  property  under  and  subject  to  an  existing  first  mort- 
gage of  $4,000.00  now  against  the  property  and  pay 
therefor  the  sum  of  $2,500.00  as  follows :  $200.00  at  the 
time  of  the  execution  of  this  agreement  and  the  balance 
at  the  time  of  settlement. 
Again,  the  property  may  be  clear  of  encumbrance  and  the 
vendor  agree  to  take  a  first  mortgage  as  part  consideration,  in 
which  event  the  clause  may  read  as  follows : 

The  said  party  of  the  second  part  agrees  to  pay  and  the 
party  of  the  first  part  agrees  to  accept  therefor  the  sum 
of  $6,500  in  the  following  manner :  $200  at  the  time  of 
the  signing  of  this  agreement  and  the  remainder  as  fol- 
lows, by  executing  to  the  vendor  a  first  mortgage  to  the 
amount  of  $4,000  on  said  property  and  the  balance  of 
$2,300  to  be  paid  in  cash  at  the  time  of  settlement. 
(a1.)     Fire  Insurance  Policies. 

All  perpetual  policies  of  fire  insurance  to  be  paid  for 
at  the  withdrawal  value,  and  term  policies  at  proportion- 
ate value  for  the  unexpired  term. 
Fire  insurance  policies  are  generally  of  two  kinds,  perpetual 
and  term.    A  perpetual  policy  is  one  which  remains  in  force  for- 
ever without  payment  of  additional  premium.    It  is  issued  on  the 
payment  of  one  premium  based  on  a  charge  of  2  per  cent,  of  the 
amount  insured  for.     Thus  the  premium   on  $1,500.00  policy 
would  be  $30.00.    This  policy  may  be  surrendered  and  cancelled 
at  any  time  and  the  holder  thereof  receive  a  rebate  or  return  of 
the  whole  premium  paid  less  10  per  cent.    This  is  what  is  known 
as  the  cancellation  or  withdrawal  value. 

A  term  policy  is  a  policy  which,  as  the  name  signifies,  issued 
for  a  limited  term  such  as  one,  three  or  five  years.  The  premium 
varies  according  to  the  risk  and  the  length  of  the  term.  The  can- 
cellation value  of  this  kind  of  a  policy  is  the  proportion  of  the 
unexpired  term  less  the  brokers'  commission  assumed  to  be  15  per 
cent,  of  the  premium.  Very  often,  however,  the  vendor  will 
throw  the  policy  in  without  charge,  especially  if  it  be  a  term 
policy,  in  which  event  this  clause  should  read : 

All  fire  insurance  policies  now  on  said  property  in- 
cluded in  the  sale. 
(e.)  Encumbrance  Clause. 

"The  premises  are  to  be  conveyed  free  and  clear  of 
all  encumbrance." 


Methods  of  Acquiring  Title  by  Purchase.  57 

This  clause,  unless  qualified  by  exceptions,  means  that  the 
vendor  undertakes  to  pass  an  absolutely  clear  title.  Any  en- 
cumbrance, such  as  mortgage,  judgment,  building  restrictions, 
would,  unless  paid  off,  be  a  noncompliance  with  this  term.  How- 
ever, if  the  title  is  to  be  taken  subject  to  the  incumbrance,  the 
clause  will  read  as  follows : 

"The  premises  are  to  be  conveyed  clear  of  all  encum- 
brance except  a  first  mortgage  of  $4,000  as  above  men- 
tioned." 
(/.)   Fixture  Clause. 

"The  gas  fixtures,  heaters,  ranges,  etc.,  annexed  to  said 
building  are  included  in  sale." 
Fixtures  are  such  articles  as  are  annexed  to  freehold.  In 
Pennsylvania  the  question  whether  a  given  article  is  a  fixture  or 
not  depends  not  on  the  way  it  is  fastened,  but  upon  the  intention 
of  the  person  who  attached  it  (National  Bank  of  Catasauqua  v. 
North,  160  Pa.  303 ;  McKay  v.  Meyer  Co.,  ^4  Pa.  Superior  Ct. 
293).  Thus  gas  fixtures,  heaters,  ranges,  may  or  may  not  be 
fixtures  according  to  the  intention  and  it  has  already  been  held 
under  certain  circumstances  that  they  are  not  (Heysham  v. 
Dettre,  89  Pa.  506).  Consequently  it  is  good  practice  to  always 
insert  a  clause  to  the  effect  that  gas  fixtures,  heaters,  ranges,  etc., 
are  included  in  sale.  Indeed,  it  is  best  to  specify  all  articles  about 
which  there  may  be  a  controversy  as  suggested  hereafter  (See 
par.  50,  suggestion  5). 
(g.)  Possession  Clause. 

"Possession  is  to  be  given  at  the  date  of  settlement." 
The  clause  as  herein  set  forth  means  that  at  the  date  of  settle- 
ment the  house  will  be  vacant  and  possession  given  to  the  vendee. 
If  there  should  be  a  tenant  whose  lease  does  not  expire  before 
the  settlement  a  mere  assignment  of  the  lease  would  not  satisfy 
this  clause  unless  the  vendee  agrees  to  waive  it.  If  it  is  desired 
to  take  the  property  subject  to  an  existing  lease,  it  is  usually  speci- 
fied as  follows: 

"Possession  to  be  given  by  lease." 
(h.)  Apportionment  of  Taxes,  Etc. 

Taxes,  water  rent,  rent  and  interest  on  encumbrance 
(if  any)  to  be  apportioned  for  the  current  term  at  the 
date  of  settlement. 
Unless  this  clause  be  inserted,  taxes  levied  before  settlement  are 
an  encumbrance  and  as  such  must  be  paid  by  the  vendor  (Dens- 
more  v.  Haggerty,  59  Pa.  189;  King  v.  Association,  106  Pa.  165). 


58  Conveyancing  in  Pennsylvania. 

This  is  the  rule  throughout  the  State,  but  is  perhaps  different  in 
Philadelphia,  where  by  local  custom  taxes,  etc.,  are  usually  ap- 
portioned without  special  stipulation  (Moore  v.  Taylor,  29  W.  N. 
C.  495).  Good  practice,  however,  requires  the  insertion  of  the 
clause  even  in  Philadelphia,  and  certainly  outside  of  that  city. 

As  the  mode  of  apportioning  taxes,  water  rent,  rent,  etc.,  will 
be  discussed  and  explained  fully  hereinafter  when  we  treat  with 
the  subject  of  settlements  (See  Chapter  XIV,  Part  V,  Settlements, 
par.  205),  it  will  suffice  now  to  say  that  under  this  clause, 
taxes  and  water  rent  and  interest  on  mortgages,  if  any  as  well 
as  rent  (if  the  property  is  occupied  by  tenant)  are  apportioned 
to  the  date  of  settlement.  That  is,  if  the  settlement  takes  place 
in  June  and  the  vendor  has  already  paid  his  taxes  for  the  whole 
year,  it  is,  of  course,  plain  that  he  is  entitled  to  a  rebate  or  a 
return  of  six  months'  taxes  from  the  vendee.  In  Philadelphia 
it  has  become  customary  to  apportion  the  rent  also  to  the  date  of 
settlement  (Singer  v.  Solomon,  56  Leg.  Int.  315,  8  Pa.  D.  R.  402), 
although  strictly  speaking  rent  does  not  accrue  day  by  day,  but 
comes  into  existence  the  day  on  which  it  is  due  and  belongs  to 
holder  of  the  legal  title  on  the  day  it  is  due.  It  may  be  neces- 
sary outside  of  Philadelphia  and  it  is  good  practice  even  in  Phila- 
delphia that  it  be  provided  in  the  agreement  that  the  rent  is 
to  be  apportioned,  as  above  set  forth. 
(i.)  Kind  of  Title  Agreed  On,  Etc. 

"The  title  is  to  be  good  and  marketable  and  such  as 
will  be  insured  by  any  title  and  trust  company  of  Phila- 
delphia.    And  the  said  parties  hereby  bind  themselves, 
their  heirs,  executors  and  administrators,  for  the  faithful 
performance  of  the  above  agreement  within  thirty  days 
from  the  date  hereof,  said  time  to  be  the  essence  of  this 
agreement,  unless  extended  by  mutual  consent  in  writing 
endorsed  hereon." 
As  has  been  said  heretofore   (Section  on  Marketable  Title, 
par.  9),  in  order  to  clear  up  any  question  that  may  arise  re- 
specting the  title  without  maintaining  an  action  of  law,  it  is  well 
to  insert  above  clause,  for  by  it  a  safe  easy  test  is  specified.    Of 
course  in  sections  of  the  State  where  there  are  no  title  companies 
the  clause  need  only  read,  "The  title  is  to  be  good  and  marketable, 
etc.,"  and  the  test  then  is  as  set  forth  hereinbefore  in  the  para- 
graph on  Marketable  Title  (Par.  9)  that  any  title  which  exposes 
the  holder  thereof  to  the  hazard  of  a  law  suit  is  not  marketable. 
As  an  agreement  of  sale  is  a  contract,  like  any  other  contract 


Methods  oe  Acquiring  Title  by  Purchase.  59 

it  would  end  on  the  death  of  a  party,  hence  the  necessity  for  that 
part  of  the  clause  which  specifies  that  the  parties  bind  themselves, 
their  heirs,  executors  and  administrators  to  the  faithful  perform- 
ance of  the  agreement.  This  prevents  death  of  either  party  from 
effecting  the  rights  of  the  other. 

46.  Execution  of  Agreement  of  Sale:     Signature  by  Agent. 

An  agreement  of  sale  should  be  executed,  that  is,  signed  by 
both  parties  or  agents.  But  when  executed  by  an  agent,  the  agent 
must  be  authorized  in  writing  to  do  so,  otherwise  the  agreement 
is  not  binding  on  his  principal  (Parish  v.  Koons,  1  Pars.  78), 
unless  the  principal  subsequently  in  writing  ratifies  this  act  of 
the  agent  (Darlington  v.  Darlington,  160  Pa.  65).  The  delivery 
of  the  deed  signed  by  the  principal  would  be  a  ratification.  This 
point  is  important  and  should  be  kept  in  mind  by  all  real  estate 
agents  and  brokers,  that  they  cannot  execute  a  binding  agreement 
of  sale  nor  a  lease  over  three  years  unless  they  have  authority  in 
writing. 

If  the  vendor  is  married,  care  should  be  taken  to  have  the  wife 
or  husband  sign,  else  she  cannot  be  compelled  to  join  in  the  deed. 
An  agent  acting  for  a  married  vendor  must  have  his  authority  to 
execute  an  agreement  of  sale  signed  by  both  husband  and  wife. 

47.  Acknowledgment  of  Agreements  of  Sale:     Recording. 

It  is  not  necessary  for  an  agreement  of  sale  to  be  acknowledged 
by  the  parties  before  a  notary  public  and  is  rarely  done,  although 
it  has  this  very  important  advantage  which  is  overlooked  by 
many  real  estate  agents  and  brokers,  to  wit,  when  acknowledged 
it  may  be  recorded.  An  agreement  of  sale  may,  under  the  record- 
ing acts,  if  properly  acknowledged,  be  recorded.  By  recording 
an  agreement  constructive  notice  is  given  to  the  world  of  the 
agreement  to  sell  and  should  the  vendor  thereafter  refuse  to 
carry  out  his  agreement  and  deliver  a  deed,  the  vendee's  agree- 
ment becomes  a  cloud  on  the  title  which  prevents  the  vendor 
from  selling  to  any  one  else ;  thus  practically  enabling  the  vendee 
to  compel  the  vendor  to  keep  his  agreement,  without  commencing 
action  at  law.  However  an  agreement  executed  by  agent  must 
be  accompanied  by  a  power  of  attorney  showing  the  agent's 
authority  to  sign,  otherwise  it  will  not  be  accepted  by  the  recorder 
of  deeds  for  record. 
48.     Legal  Effect  of  Agreement  of  Sale. 

The  moment  an  agreement  of  sale  is  signed  it  has  the  effect  of 


60  Conveyancing  in   Pennsylvania. 

vesting  in  the  vendee  what  is  known  as  an  equitable  title  to  the 
land.  That  is  the  vendee  has  a  right  to  go  to  a  court  of  equity 
to  enforce  the  terms  if  violated  by  the  vendor.  The  vendor  has 
in  like  manner  an  equitable  title  to  the  money.  The  vendee, 
however,  may  at  his  election  enforce  the  transfer  of  the  legal 
title  to  him  or  waive  this  right  and  sue  for  damages  in  a  court  of 
law. 

49.  Extinction  of  Agreement. 

(a.)  Merger. — An  agreement  of  sale  may  be  extinguished  first 
by  deed  being  made  and  delivered  by  the  vendor  to  the  vendee  in 
which  event  it  is  said  to  be  merged  into  the  deed.  That  is  the 
deed  supersedes  or  takes  the  place  of  the  agreement  of  sale.  The 
general  rule  is  that  the  deed  executed,  delivered  and  accepted  is 
taken  to  be  the  ultimate  intent  of  the  parties  and  prevails  over 
inconsistent  provision  of  a  prior  agreement.  This  rule  has  of 
course  exceptions,  but  consideration  of  these  are  unnecessary  for 
our  consideration  here. 

(b.)  Cancellation  or  Recision  by  Parties. — If  the  parties  to  the 
agreement  mutually  agree  that  it  be  cancelled,  abrogated  or 
avoided  this  of  course  extinguishes  the  agreement  of  sale.  The 
agreement  to  rescind  the  agreement  of  sale  need  not  be  in  writing 
but  for  sake  of  safety  and  convenience  of  proof  it  is  much  better 
to  have  it  done  in  writing  (McClure  v.  Jones,  121  Pa.  550). 

50.  Suggestions  in  Drawing  Agreements  of  Sale. 

The  condition  of  the  property  purchased  will  of  course  suggest 
additional  clauses  which  may  be  inserted  for  the  better  protec- 
tion of  either  of  the  parties.  The  following  are  some  suggestions 
as  to  points  to  observe  in  drawing  agreements  of  sale: 

1.  If  the  property  about  to  be  purchased  is  not  vacant,  specify 
when  and  how  possession  is  to  be  given. 

2.  If  the  vendee  is  to  have  possession  before  settlement  have 
him  sign  a  lease  containing  the  usual  ejectment  clause  (see  form 
par.  248) ,  for  the  period  to  the  time  of  settlement.  This  will  pro- 
tect the  vendor  in  case  the  settlement  is  not  completed  and  the 
vendee  refuses  to  move  out.  The  ejectment  clause  in  a  lease  pro- 
vides a  speedy  method  of  ejecting  a  recalcitrant  tenant  and  saves 
delay  and  expense  of  the  ordinary  proceeding  at  law. 

3.  See  that  the  agreement  provides  that  taxes,  water  rent  and 
house  rent  are  to  be  apportioned  at  the  settlement.  By  local  cus- 
tom (Moore  v.  Taylor,  29  W.  N.  C.  495),  in  Philadelphia,  this 


Methods  of  Acquiring  Title  by  Purchase.  6i 

is  always  done,  but  outside  of  Philadelphia  not  unless  specified. 
Taxes  levied  and  unpaid  are  really  an  incumbrance  and  must  be 
removed  by  the  grantor  unless  the  agreement  provides  that  they 
should  be  apportioned  (King  v.  Association,  106  Pa.  165).  Rent 
is  held  not  to  accrue  day  by  day  but  to  spring  into  existence  the 
day  it  is  due,  hence,  when  a  month's  rent  is  paid  in  advance  to  the 
grantor  he  would  be  entitled  to  whole  of  it  even  if  the  settlement 
be  the  next  day,  unless  the  agreement  provides  that  it  is  to  be  ap- 
portioned (Singer  v.  Solomon,  8  Pa.  Dist.  R.  402,  but  see  John- 
son v.  Smith,  3  P.  &  W.  496). 

4.  It  is  well  to  provide  also  that  municipal  improvements  or 
work  done  in  or  about  the  property  by  the  city  which  might  be  a 
lien  on  the  property,  made  between  the  date  of  the  agreement  of 
sale  and  settlement  must  be  paid  for  by  the  vendee,  otherwise  the 
vendor  might  be  forced  to  bear  the  expense.  For  this  sugges- 
tion the  author  is  indebted  to  a  prominent  member  of  the  bar  who 
related  a  circumstance  in  which  a  rather  shrewd  vendee  after  the 
purchase  of  a  property  filed  a  complaint  through  a  third  party 
with  the  city  where  premises  in  question  were  not  under-drained, 
the  city  caused  the  work  to  be  done  and  at  the  settlement  the 
vendee  maintained  that  the  city  claim  was  an  encumbrance  which 
the  grantor  was  bound  to  remove. 

5.  Fixtures  attached  pass  with  the  freehold.  Not  the  manner 
of  annexation  but  the  intention  determines  the  question  whether 
a  given  chattel  has  or  has  not  become  a  fixture  (National  Bank 
of  Catasauqua  v.  North,  160  Pa.  303).  It  is  a  vexed  question 
which  can  and  should  be  avoided  in  the  agreement  of  sale. 
Specify  therefore  in  the  agreement  of  sale  that  all  gas  fixtures, 
heater,  range,  &c,  are  included  in  the  sale.  Much  litigation  can 
be  avoided  by  taking  the  little  additional  time  required  to  enum- 
erate what  fixtures  ornamental  or  otherwise  are  included. 

6.  When  purchasing  a  property  occupied  by  a  tenant  examine 
the  property  and  determine  what  fixtures  the  tenant  placed  in  the 
property  and  what  he  claims  the  right  to  remove  (McKay  v. 
Meyer  Co.,  44  Pa.  Superior  Ct.  293).  Do  this  especially  where 
the  premises  about  to  be  purchased  is  a  store,  for  great  liberality 
is  shown  the  tenant  in  the  matter  of  trade  fixtures  (William's 
Landlord  and  Tenant,  52  2d  Ed. ;  Lindsay  v.  Curtis,  236  Pa.  229). 

7.  Sometimes  where  the  unexpired  term  of  a  fire  policy  is  of 
small  value  the  vendor  can  be  induced  to  throw  it  in  the  sale 
without  charge. 


CHAPTER  V. 
INSTRUMENTS  OF  CONVEYANCING.     (Continued.) 

Deeds. 


Page. 

SECTION   I. 

Si.  What  is  a  Deed?     Seal   ..     62 

52.  Kinds  of  Deed.    Deed  Poll. 

Indenture  63 

53.  Analysis    of    a    Deed    and 

Form  64 

54.  Meaning  of  Various  Parts. 

Deed.     Premises   67 

55.  Meaning  of  Various   Parts 

of     Deed     (Continued). 
Habendum  72 

56.  Meaning  of  Parts  of  Deed 

(Concluded).  Conclusion    75 
SECTION  11. 

57.  Short  Form  of  Deed  Under 

Act  of  1909  76 

58.  Provisions  of  Act  of  April 

1,  1909 77 

SECTION  in. 
EXECUTION    OF    DEEDS. 

59.  Meaning   of    Term    Execu- 

tion       79 

60.  Signing 79 

61.  Sealing  80 


Page. 

62.  Attestation    80 

63.  Delivery  of  Deed 81 

64.  Delivery  in  Escrow 81 

65.  Destruction  Deed  Does  Not 

Revest  the  Property  ....     82 

SECTION   IV. 
ACKNOWLEDGMENT    AND     PROBATE. 

66.  Necessity    for    and    Mean- 

ing of  Acknowledgment. 

67.  How   Made    

68.  Separate    Acknowledgments 

of  Married  Women  Not 
Necessary  in  Pennsylva- 
nia   

69.  What  a  Valid  Certificate  of 

Acknowledgment  Must 
Contain  84 

70.  By      Whom      Acknowledg- 

ments May  be  Taken  ...     85 

71.  Notaries    Public.      How    to 

Become  One  90 

72.  Probate    of    Deeds    Where 

Grantor  is  Dead  or  Un- 
able to  Appear  91 


82 
82 


*4 


Having  executed  the  agreement  of  sale,  the  next  step  to  bring 
about  the  tranfer  of  title  is  the  preparation  and  execution  of  a 
deed.  The  instrument  known  as  deed  is  therefore  our  next  con- 
sideration. 


51.     What  Is  a  Deed;  Seal. 

A  deed,  technically  speaking,  is  any  writing  sealed  and  deliv- 
ered by  the  parties  (Michell  on  Real  Estate  and  Conveyancing, 
402).  Because  "deeds"  are  commonly  used  in  conveying  title  to 
real  estate,  it  is  quite  a  popular  error  to  suppose  that  a  deed  is 

62 


Instruments  of  Conveyancing.  63 

an  instrument  limited  to  that  use  only.  The  distinguishing 
feature  about  a  deed  is  that  the  writing  is  under  seal.  It  is  there- 
fore considered  in  law  to  be  a  solemn  instrument.  The  seal  im- 
ports solemnity.  In  the  early  days  a  wax  seal  was  required  and 
everyone  had  his  own  peculiar  device  or  mark  for  a  seal. 
Nowadays,  the  old  time  wax  seal  has  been  dispensed  with  and  is 
no  longer  required.  Any  mark  placed  after  the  signature  of  a 
person  intended  to  be  a  seal  is  so  considered  (Hacker's  Appeal, 
121  Pa.  192).  Usually  a  seal  is  now  represented  by  the  word 
(seal)  in  brackets  or  the  letters,  (L.  S.).  In  most  legal  docu- 
ments it  is  printed  at  the  end  of  the  line.  Anyone  signing  oppo- 
site the  printed  seal  is  presumed  in  law  to  have  adopted  the 
printed  seal  as  his  own  (Lorah  v.  Nissley,  156  Pa.  329). 

If  therefore  any  instrument  in  writing  under  seal  is  a  deed,  it 
follows  legally  speaking  that  bonds,  leases,  mortgages,  &c,  which 
are  usually  under  seal  are  deeds,  and  therefore  to  be  exact,  deeds 
to  convey  property  should  be  termed  deeds  of  conveyance.  The 
word  deed  however  has  been  so  consistently  used,  not  only  by 
laymen,  but  even  by  the  bar  that  it  has  come  to  have  a  fixed  mean- 
ing in  the  minds  of  the  public  and  we  will  therefore  not  hesitate 
to  refer  to  a  deed  of  conveyance  simply  as  deed. 

52.     Kinds  of  Deeds.     Deed  Poll.     Indenture. 

That  fountain  head  of  legal  definitions,  Blackstone  (2  Blk. 
page  296)  very  clearly  explains  the  difference  between  a  deed 
poll  and  an  indenture.  An  indenture  is  the  appropriate  name  of 
a  deed  to  which  there  are  two  or  more  parties  as  distinguished 
from  a  deed  poll  which  is  made  by  one  person.  An  indenture  de- 
rives its  name  from  the  indentation  which  always  appeared  on  a 
deed  made  between  two  or  more  parties.  Formerly  deeds  be- 
tween two  parties  were  written  as  two  copies  or  counterparts  on 
the  same  sheet  of  paper  or  parchment  signed  by  both  grantor  and 
grantee ;  between  the  two  counterparts  some  words  or  letters  of 
the  alphabet  were  written.  The  copies  were  then  separated  by  a 
wave  like  or  indented  line  cut  through  these  words  or  letters. 
Each  party  to  the  deed  received  one  copy.  In  case  of  dispute 
arising  as  to  the  authenticity  of  either  counterparts  they  could 
be  fitted  together  and  the  question  of  genuineness  definitely  set- 
tled. From  the  indented  cut  came  the  name  indenture  and  to  this 
day  every  deed  still  begins  with  the  words  "This  Indenture," 
although  now  only  the  grantor  signs. 


64  Conveyancing  in   Pennsylvania. 

53.    Analysis  of  a  Deed.    Form.  * 

This  Indenture,  made  the  Twelfth  day  of  July  in  the  year  of 
our  Lord  one  thousand  nine  hundred  and  eight  (1008)  between 
Andrew  Black,  Grocer  of  the  City  and  County  of  Philadelphia, 
State  of  Pennsylvania,  (hereinafter  called  the  grantor  ),  of  the 
one  part,  and  Charles  Dolan,  Merchant,  also  of  the  said  City  and 
State,  (hereinafter  called  the  grantee     ),  of  the  other  part, 

WITNESSETH.  That  the  said  grantor  for  and  in  consideration 
of  the  sura  of  One  ($1.00)  Dollar  lawful  money  of  the  United 
States  of  America,  unto  him  well  and  truly  paid  by  the  said 
grantee  at  or  before  the  sealing  and  delivery  hereof,  the  receipt 
whereof  is  hereby  acknowledged,  hath  granted,  bargained  and 
sold,  released  and  confirmed,  and  by  these  presents  doth  grant, 
bargain  and  sell,  release  and  confirm  unto  the  said  grantee  his 
heirs  and  assigns. 

All  That  Certain  lot  or  piece  of  ground  with  the  messuage  or 
tenement  thereon  erected,  Situate  on  the  West  Side  of  "Y"  Street 
at  the  distance  of  three  hundred  and  thirty-seven  (337)  feet 
Northzvard  from  the  North  side  of  "X"  Street  in  the  Fortieth 
Ward  of  the  City  of  Philadelphia.  Containing  in  front  or 
breadth  on  the  said  "Y"  Street,  Eighteen  feet  and  extending  of 
that  width  in  length  or  depth  Westzvard  between  two  parallel 
lines  at  right  angles  with  the  said  "X"  Street  One  hundred  feet  to 
a  certain  three  feet  zvide  alley  extending  Northward  from  "X" 
Street  to  "Z"  Street. 

Being  the  same  premises  which  Edward  France  and  Wife  by 
Indenture  bearing  date  the  5th  day  of  July  A.  D.  1006  and  re- 
corded in  the  Office  for  the  Recording  of  Deeds  in  and  for  the 
County  of  Philadelphia  in  Deed  Book  W.  S.  V.  No.  1196,  Page 
213,  &c,  granted  and  conveyed  unto  the  said  Andrezv  Black  in 
fee. 

Under  and  Subject,  nevertheless,  to  certain  express  conditions 
and  restrictions  as  appear  of  Record  in  Deed  Book  W.  M.  G.  322, , 
Page  34  &c. 

Under  and  Subject  also  nevertheless,  to  the  payment  of  a  cer- 
tain Mortgage  Debt  or  Principal  Sum  of  $3,500.00  zvith  interest 
thereon  as  the  same  may  become  due  and  payable. 

Together  with  the  free  and  common  use,  right,  liberty  and 
privilege  of  the  aforesaid  alley  as  and  for  a  passage  zvay  and 
water  course  at  all  times,  hereafter,  forever. 

And,  Together  will  all  and  singular  the  buildings,  improve- 
ments, ways,  streets,  alleys,  passages,  waters,  water-courses, 
rights,  liberties,  privileges,  hereditaments  and  appurtenances, 
whatsoever  unto  the  hereby  granted  premises  belonging,  or  in 

*This  form  of  deed  can  be  purchased  already  printed  at  any  legal 
stationer.  The  words  set  out  in  italics  must  be  filled  in  as  shown  above 
by  the  conveyancer  in  the  blank  spaces  left  in  the  printed  form  for  that 
purpose. 


Instruments  of  Conveyancing.  65 

any  wise  appertaining,  and  the  reversions  and  remainders,  rents, 
issues  and  profits  thereof ;  and  all  the  estate,  right,  title,  interest, 
property,  claim  and  demand  whatsoever  of  him  the  said  grantor 
as  well  at  law  as  in  equity,  of,  in,  and  to  the  same. 

To  Have  and  to  Hold  the  said  lot  or  piece  of  ground  above 
described  with  the  messuage  or  tenement  thereon  erected,  heredit- 
aments and  premises  hereby  granted,  or  mentioned  and  intended 
so  to  be,  with  the  appurtenances,  unto  the  said  grantee  his  heirs 
and  assigns,  to  and  for  the  only  proper  use  and  behoof  of  the 
said  grantee  his  heirs  and  assigns  forever. 

Under  and  Subject,  nevertheless,  to  the  payment  of  a  certain 
Mortgage  Debt  or  Principal  Sum  of  $3,500.00  with  interest  as 
aforesaid. 

And  the  said  Andrew  Black,  Grantor,  for  himself,  his  heirs, 
executors  and  administrators,  doth  covenant,  promise  and  agree, 
to  and  with  the  said  grantee  his  heirs  and  assigns,  by  these  pres- 
ents, that  he,  the  said  Grantor  his  heirs  and  assigns  all  and 
singular  the  hereditaments  and  premises  hereby  granted  or  men- 
tioned and  intended  so  to  be,  with  the  appurtenances,  unto  the 
said  grantee  his  heirs  and  assigns,  against  him,  the  said  Grantor, 
his  heirs  and  assigns  and  against  all  and  every  person  and  per- 
sons whomsoever  lawfully  claiming  or  to  claim  the  same  or  any 
part  thereof,  by,  from  or  under  him,  them,  or  any  of  them,  shall 
and  will  Under  and  Subject  as  Aforesaid,  Warrant  and  forever 
Defend. 

In  Witness  Whereof,  the  party  of  the  first  part  has  hereunto 
set  his  hand  and  seal  Dated  the  day  and  year  first  above  written. 

Sealed  and  delivered  in  the 
presence  of  us : 

Andrew  Black.         (Seal.) 
Wm.  F.  Belsterling, 
Daniel  Long. 

Received,  on  the  day  of  the  date  of  the  above  Indenture,  of  the 
above-named  grantee  the  sum  of  $1.00  being  the  full  considera- 
tion above  mentioned. 

Andrew  Black.         (Seal.) 
Witness: 

Daniel  Long. 

On  the  Twelfth  day  of  July  Anno  Domini  1008,  before  me, 
the  subscriber,  a  Notary  Public  for  the  Commonwealth  of  Penn- 
sylvania, residing  in  the  City  of  Philadelphia,  personally  appeared 
the  above-named  Andrew  Black  and  in  due  form  of  law  acknowl- 
edged the  above  Indenture  to  be  his  act  and  deed,  and  desired  the 
same  might  be  recorded  as  such. 


66  Conveyancing  in   Pennsylvania. 

Witness  my  hand  and  Notarial  seal  the  day  and  year  afore- 
said. 

William  F.  Belsterling, 

Notary  Public. 

My  commission  expires  January  12,  ipn. 

Recorded  in  the  Office  for  Recording  of  Deeds  in  and  for 

,  in  Deed  Book  ,  No 

page  . . . . ,  etc. 

Witness  my  hand  and  seal  of  office  this day  of 

,  Anno  Domini  191 . . 

There  is  much  inserted  in  a  deed  which  could  easily  be  omitted 
and  in  fact  most  of  the  States  including  Pennsylvania  have 
adopted  by  statute  a  short  form  of  deed  of  which  we  will  treat 
hereinafter  (par.  57).  But  there  is  this  to  be  said  in  favor  of 
the  old  form ;  every  clause  and  word  has  had  years  of  legal  in- 
terpretation and  has  acquired  an  exact  known  meaning  to  the 
profession.  Furthermore  short  forms  vary  in  different  states, 
but  the  common  law  form  of  deed  is  universal.  An  examination 
of  the  following  form  of  deed  discloses  that  it  may  be  divided 
into  three  principal  parts  :— 

1.  The  Premises  which  extends  from  the  beginning  of  the  deed 
to  the  words,  "To  have  and  to  hold." 

2.  The  Habendum  Clause,  which  extends  from  the  words,  "To 
have  and  to  hold"  to  the  words  "In  witness  hereof." 

3.  The  Conclusion  which  embraces  the  rest  of  the  deed. 
These  three  principal  parts  of  deeds  may  be  subdivided  as 

follows : — 

^Date. 
Names  of  parties. 
Consideration. 
Granting  clause. 
Description. 
Recital. 

Under  and  Subject  Clause  (  ?) 
Appurtenance  Clause. 

{To  have  and  to  hold  Clause. 
Under  and  Subject  Clause  (  ?) 
Covenants  and  Warranty. 

C  Execution  Clause. 
Conclusion  includesJ  Receipt. 

I  Acknowledgment  Clause. 


Premises  includes 


Instruments  of  Conveyancing.  67 

54-     Meaning  of  Parts.     Premises: 

(a.)  Date.  While  the  date  should  in  all  cases  be  inserted  it  is 
not  essential  to  the  validity  of  the  deed.  Anciently  deeds  were  not 
dated.  But  a  date  inserted  saves  the  party  the  trouble  and  ex- 
pense of  proving  the  actual  date  should  the  question  ever  arise.  A 
date  inserted  in  the  deed,  however,  is  not  proof  absolute  that  the 
deed  was  executed  on  that  date.  The  date  can  be  contradicted, 
but  it  is,  of  course,  prima  facie  evidence  of  the  time  of  the 
deed's  execution  (Finney's  Appeal,  59  Pa.  398;  Park  v.  Neely, 
90  Pa.  52;  Cutter  v.  Pierson,  26  Superior  Ct.  13). 

(b.)  Names  of  Parties. — Following  the  date  comes  the  names 
of  the  parties,  their  professions  and  city  in  which  they  live 
Care  should  be  taken  to  insert  the  correct  names  of  the  parties 
and  if  they  have  middle  initials  insert  them.  In  this  way  may  be 
avoided  the  possible  expense  of  correcting  the  deed  or  estab- 
lishing identity.  It  is  good  practice  to  insert  the  profession  fol- 
lowing the  names.  It  is  to  be  regretted  that  this  old  custom  has 
lately  fallen  in  disuse.  It  had  many  advantages,  chief  among 
them  being  its  aid  in  fixing  the  identity  of  the  individual  against 
whom  a  title  search  was  being  made.  E.  g.:  John  Smith,  Black- 
smith, distinguished  him  from  the  hosts  of  other  John  Smiths 
appearing  of  record,  in  a  way  that  would  leave  no  doubt  on 
the  mind  of  the  person  making  the  title  search  that  he  was 
the  one  sought.  Of  like  advantage  is  the  adding  the  name  of 
the  city  and  state  in  which  the  grantor  or  grantee  resides,  and 
this  is  usually  done. 
(c.)   Consideration. 

That  the  said  grantor,  Andrew  Black,  for  and  in  con- 
sideration of  one  ($1.00)   dollar  lawful  money  of  the 
United  States  unto  him  well  and  truly  paid  by  the  said 
grantee  at  or  before  the  sealing  or  delivery  hereof,  the 
receipt  whereof  is  hereby  acknowledged. 
At  common  law  a  bargain  and  sale  conveyance  (such  as  the 
form  herein  set  forth),  required  an  expressed  consideration  to 
make  it  valid.     The  amount  of  the  consideration  was  of  no  mo- 
ment so  long  as  it  was  expressed,  hence  arose  the  custom  of  in- 
serting one  dollar  as  a  consideration,  a   form  which  has  per- 
sisted  to   the   present   day.      The   considerations    expressed   in 
modern  deeds  are  not  conclusive  and  may  be  contradicted  and 
the  real  consideration  proved  (Alexander  v.  Bush,  46  Pa.  62). 
Hence,   considerations    expressed   are    frequently   fictitious    and 


68  Conveyancing  in   Pennsylvania. 

what  is  known  as  a  nominal  consideration,  that  is  "one  dollar," 
is  most  usually  inserted,  it  having  the  additional  advantage  of 
keeping  from  the  public  the  real  amount  paid  for  the  property 
conveyed. 

(d.)  Granting  Clause. 

"Hath  granted,  bargained  and  sold,  released  and  con- 
firmed and  by  these  presents  doth  grant,  bargain  and  sell, 
release  and  confirm  unto  the  said  grantee  his  heirs  and 
assigns." 

These  words  are  sometimes  called  the  "operative  words"  and 
in  the  printed  form  of  deeds,  usually  precede  the  description, 
but  may  be  inserted  anywhere.  While  these  words  are  always 
printed  in  the  deed  the  strict  necessity  of  these  words  is  no 
longer  required,  they  may  be  dispensed  with,  provided  words 
indicating  an  intention  to  convey  are  used  (Auman  v.  Auman, 
21  Pa.  343).  In  Pennsylvania  the  Act  of  1909  (see  infra,  par. 
58,  Act  of  April  1,  1909,  P.  L.  91)  provides  that  the  words 
grant  and  convey,  or  either  one  of  them,  shall  import,  grant, 
bargain  and  sell,  release  and  confirm,  etc. 

Word  "Heirs"  Important. — The  last  three  words,  "his  heirs 
and  assigns"  are  known  as  words  of  limitation  because  they  limit 
or  denote  the  quantity  of  the  estate  intended  to  be  conveyed. 
To  pass  a  fee  simple  estate  the  word  heirs  is  essential,  and  at 
common  law  without  the  addition  of  such  word  the  grantee  took 
but  a  life  estate  (Brown  v.  Mattocks,  103  Pa.  16).  These 
words  when  not  printed  in  the  deed  must  be  added  by  the  con- 
veyancer. If  the  grantee  is  an  individual  the  apt  words  are 
"his  heirs  and  assigns."  If  a  corporation  the  apt  words  are 
its  successors  and  assigns.  The  word  assigns,  while  usually 
added,  is  superlative.  The  word  heirs  is  the  important  word. 
The  word  heirs  ought,  therefore,  as  a  matter  of  good  practice  be 
always  inserted,  although  since  the  Act  of  1909  (Par.  58,  infra) 
it  may  no  longer  be  necessary.  But  even  before  this  act  there 
were  five  instances  as  set  forth  by  Fallon  (Conveyancing  in  Penn- 
sylvania, Fallon,  155)  in  which  the  word  heirs  might  be  dis- 
pensed with. 

(1.)  In  executory  contracts  or  agreements  for  the  sale  of 
land,  inasmuch  as  they  are  regarded  as  conveyances  in  equity, 
which  will  permit  the  passing  of  a  fee  upon  payment  of  the 
consideration,  without  words  of  inheritance. 


Instruments  oe  Conveyancing.  69 

(2.)  A  conveyance  to  a  corporation  does  not  require  the 
words  "successors  and  assigns,"  as  it  is  supposed  to  have  per- 
petual existence.*  I 

(3.)  A  fee  simple  may  be  created  by  reference  to  another 
instrument  in  which  the  necessary  words  are  used,  by  an  in- 
dorsement granting  "all  right,  title  and  interest  in  the  within 
deed,"  indicating  an  intention  to  pass  a  fee. 

(4.)  A  sale  by  an  officer  of  the  law  under  an  order  of  court 
may  operate  to  pass  an  estate  in  fee  without  the  use  of  the  word 
"heirs."    This  is  especially  so  in  the  case  of  a  sheriff's  sale. 

(5.)  A  conveyance  to  a  trustee  which  requires  the  vesting 
of  a  fee  in  the  trustee  in  order  to  carry  out  the  trust  does  not 
require  words  of  inheritance. 
(e.)  Description. 

All  that  certain  lot  or  piece  of  ground  with  the  mes- 
suage or  tenement  thereon  erected,  situate  on  the  west 
side  of  Y  Street  at  the  distance  of  three  hundred  and 
thirty-seven  (337')  feet  northward  from  the  north  side 
of  X  Street  in  the  Fiftieth  Ward  of  the  City  of  Phila- 
delphia, containing  in  front  or  breadth  on  said  Y  Street 
eighteen  (18')  feet  and  extending  of  that  width  in  length 
or  depth  westward  between  two  parallel  lines  at  right 
angles  with  said  X  Street  one  hundred  (100')  feet  to  a 
certain  three  feet  wide  alley  extending  north  from  X 
Street  to  Z  Street. 
This  part  of  the  deed  is  called  the  description  and  is,  of  course, 
to  be  inserted  into  the  deed  by  the  conveyancer.  The  object  of  the 
description  in  a  deed  is  to  identify  the  land  to  be  conveyed,  and 
no  deed  will  be  operative  which  does  not  contain  a  description 
sufficient  for  such  identification  (Negley  v.  Lindsay,  67  Pa.  225). 
The  description,  while  it  must  be  clear,  need  not  necessarily  be 
technically  accurate,  but  must  be  sufficiently  precise  to  enable  the 
surveyor  to  locate  it.     Should  the  deed  contain  a  reference  to 
some  other  paper  which  describes  the  property  it  will  be  suf- 
ficient (Armstrong  v.  Boyd,  3  P.  &  W.  458).     For  this  reason 
the  recital  is  always  placed  in  a  deed.     The  reference  therein 
to  the  prior  deed  insures  against  any  possible  mistake  in  the 
description. 

*  Although  not  all  corporations  are  perpetual,  some  corporations  are  lim- 
ited to  a  term  of  years,  e.  g.,  state  banking  corporations.  Better  use  the 
words  successors  and  assigns,  even  though  superlative. 


jo  Conveyancing  in   Pennsylvania. 

(/.)   The  Recital. 

Being  the  same  premises  which  Edward  Frame  and 
wife  by  indenture  bearing  date  the  fifth  day  of  July,  A. 
D,  1910,  and  recorded  in  the  office  for  the  recording  of 
deeds  in  and  for  the  City  and  County  of  Philadelphia  in 
Deed  Book  W.  S.  V.  1196,  page  213,  etc.,  granted  and 
conveyed  unto  Andrew  Black  in  fee. 
This  clause,  known  as  the  recital,  is  not  a  necessary  part  of  the 
deed,  although   it  is  of  value  in   indicating  the  source  of  the 
title  and  in  fixing  the  description  of  land.     It  ought,  therefore, 
always  be  inserted  in  the  deed.     Its  usual  place  is  immediately 
following  the  description.     Anything  recited  in  the  recital  as 
intended  to  be  done  is  treated  in  law  thereafter  as  being  done 
(Penn  v.  Preston,  2  Rawle  14;  Waslee  v.  Rosmann,  231    Pa. 
219).    Where  the  recital  and  operative  part  of  the  deed  conflict 
the  operative  part  prevails  if  certain  and  definite.     If  indefinite 
the  recital  may  be  used  to  explain  it. 

(g.)  Encumbrance  Clause.    Under  and  Subject. 

Under  and  subject  nevertheless  to  the  payment  of  a 
certain  mortgage  debt  or  principal  sum  of  thirty-five 
hundred  ($3,500.00)  dollars  with  interest  thereon  as  the 
same  may  become  due  and  payable. 
This  under  and  subject  clause  may  be  placed  either  in  the 
premises  immediately  following  the  recital  or  in  the  habendum 
immediately  after  the  to  have  and  hold  clause.  In  the  deed  form 
set  forth  on  page  64  we  have  placed  it  in  the  premises  and 
referred  to  it  again  in  the  habendum,  which  is  quite  a  common 
method.  Before  the  Act  of  June  12,  1878  (P.  L.  205),  in  Penn- 
sylvania the  under  and  subject  clause  as  above,  made  the  grantee 
personally  liable  to  both  the  grantor  and  mortgagee  or  holder 
of  the  mortgage  for  any  balance  which  might  remain  due  if  on 
foreclosure  the  land  failed  to  bring  the  principal  of  the  mortgage. 
This  is  on  the  theory  that  the  under  and  subject  clause  operated 
as  an  implied  covenant  on  the  part  of  the  grantee  to  assume  the 
payment  of  the  mortgage  debt.  Since  the  act,  however,  the 
grantee  is  not  personally  liable  to  the  mortgagee  for  the  payment 
of  the  mortgage  principal  unless  "he  shall  by  agreement  in  writ- 
ing have  expressly  assumed  a  personal  liability  therefor  or 
there  shall  be  express  words  in  the  deed  of  conveyance  stating 
that  the  grant  is  made  on  condition  of  the  grantee  assuming  per- 
sonal liability:  Provided  that  the  use  of  the  words  under  and 
subject  to  the  payment  of  such  ground  rent,  mortgage  or  other 


Instruments  of  Conveyancing.  71 

encumbrance  shall  not  alone  be  construed  as  to  make  such  grantee 
personally  liable  as  aforesaid." 

It  was  the  general  impression  of  the  real  estate  lawyers  until 
the  decision  of  May's  Estate  (218  Pa.  64)  that  this  Act  of  June 
12,  1878,  absolved  the  grantee  from  all  personal  liability  as  to 
both  grantor  and  mortgagee,  so  that  in  the  event  of  a  foreclosure 
the  grantee's  liability  was  limited  to  the  value  of  the  land. 
May's  Estate  (218  Pa.  64)  holds  otherwise  and  decides  in  sub- 
stance that  the  Act  of  1878  merely  bars  the  mortgagee  or  subse- 
quent holder  of  the  mortgage  from  proceeding  directly  against 
the  grantee,  but  that  "the  grantee  is  liable  to  the  grantor  if  the 
grantor  is  compelled  to  make  good  to  the  mortgagee  the  differ- 
ence between  what  the  land  brings  and  the  value  of  the  mort- 
gage." The  effect  of  the  decision  is  to  permit  the  mortgagee 
to  accomplish  indirectly  what  he  cannot  do  directly,*  that  is  fasten 
ultimate  liability  upon  the  grantee  by  suing  the  grantor  who  in 
turn  can  sue  the  grantee  and  recover  from  the  grantee  what  he, 
the  grantor,  was  compelled  to  pay  the  mortgagee.  The  situation 
is  unfortunate  and  an  act  of  the  legislature  is  sorely  needed  to 
absolve  the  grantee  from  personal  liability  on  the  encumbrance. 
Until  such  act  is  passed  the  only  method  by  which  a  grantee  can 
avoid  personal  responsibility  is  to  insist  on  a  release  of  this 
liability  from  a  grantor  when  taking  title. 

Of  course,  should  there  be  no  mortgage  to  take  under  and 
subject  to  the  clause  is  omitted  unless  there  be  certain  building 
restrictions,  in  which  case  the  clause  would  read: 

"Under  and  subject  nevertheless  to  certain  express 
conditions  and  restrictions  as  appear  of  record  in  Deed 
Book  W.  M.  G.  322,  page  34,  etc." 
This  is  the  usual  method  of  drawing  this  clause,  although  the 
far  better  practice  is  to  actually  recite  the  restrictions  if  not 
too  bulky,  e.  g.: 

"Under  and  subject  nevertheless  to  the  express  con- 
ditions and  restrictions  that  said  premises  shall  not, 
within  the  period  of  five  years  from  the  date  hereof  be 
sold  to  or  occupied  by  any  person  other  than  of  Cau- 
casian race,  and  that,  within  said  period  the  said  premi- 
ses shall  not  be  used  as  an  undertaking  establishment, 
nor  for  the  manufacture,  bottling  or  sale  of  malt,  vinous 

♦Smith  v.  Danielson,  45  Pa.  Superior  Ct.  136,  holds,  the  mortgagee  can- 
not even  maintain  the  action  in  the  name  of  the  mortgagor  to  his  (mort- 
gagee) use. 


72  Conveyancing  in   Pennsylvania. 

or  spirituous  liquors  nor  for  the  carrying  on  of  any  busi- 
ness requiring  the  use  of  machinery  run  otherwise  than 
by  human  power,  and  that  the  porches  upon  said  struct- 
ure erected  on  the  said  lot  shall  be  maintained  free  of 
any  enclosure  or  obstruction  which  might  prevent  the 
free  and  common  enjoyment  of  air,  light  and  view  by  all 
of  the  owners,  tenants  and  occupiers  of  structures  upon 
any  of  the  lots  which  may  front  on  the  said  Y  Street 
between  X  Street  and  Z  Street. 
(h.)  Appurtenance  Clause.    End  of  Premises. 

"Together  with  all  and  singular  the  buildings,  im- 
provements,   ways,    streets,    alleys,    passages,    waters, 
water-courses,  rights,  liberties,  privileges,  hereditaments 
and  appurtenances  whatsoever  unto  the  hereby  granted 
premises  belonging,  or,  in  anywise  appertaining  and  the 
reversions    and    remainders,    rents,    issues    and   profits 
thereof,  and  all  the  estate,  right,  title,  interest,  property, 
claim,  and  demand  whatsoever  of  him,  the  said  grantor, 
as  well  at  law  as  in  equity  of,  in  and  to  the  same." 
As  a  matter  of  law,  all  easements,  rights  and  incidents  which 
belong  to  the  property  conveyed  and  are  necessary  to  its  full 
enjoyment,  pass  as  appurtenances  without  mention  of  them  in 
the  deed  (Murphy  v.  Campbell,  4  Pa.  480;  Casey  v.  Canning, 
43  Superior  31).     But  only  those  things  that  are  necessary  to 
the  enjoyment  of  the  land  conveyed  pass  without  mention ;  things 
that  are  merely  convenient  do  not  (Messer  v.  Rhodes,  3  Brewst. 
180).     Thus,  e.  g.,  alley-ways,  water-courses,  light  and  air  are 
usually  merely  convenient  and  thence  would  not  pass  as  an  appur- 
tenance.    For  this  reason  the  appurtenance  clause  which  is  so 
broadly  drawn  as  to  cover  every  conceivable  right,  usually  always 
appears  in  the  printed  form  of  deeds.     The  legal  maxim  "that 
what  is  appurtenant  to  a  piece  of  land  is  appurtenant  to  every 
part  thereof"  is  well  to  be  remembered,  for  if  a  right  of  way  be 
granted  as  appurtenance  to  a  tract  of  land,  later  if  that  tract 
be  divided  into  smaller  lots,  each  of  the  grantees  of  the  sub- 
divisions will  be  entitled  to  the  same  right  of  way  (Ermentrout 
v.  Stitzel,  170  Pa.  540),  which  may  have  been  intended  only  for 
the  convenience  of  the  single  owner  of  the  undivided  tract. 
55.    Meaning  of  Various  Farts  of  Deed  Continued.     Habendum  Part. 
(a.)   To  Have  and  To  Hold  Clause. 

"To  have  and  to  hold  the  said  lots  or  pieces  of  ground 
above  described  with  the  messuage  or  tenement  thereon 
erected ;  hereditaments  and  premises  hereby  granted  or 
mentioned   and   intended   so  to  be,  with   the  appurte- 


Instruments  of  Conveyancing.  73 

nances,  unto  said  grantee,  his  heirs  and  assigns,  to  and 
for  the  only  proper  use  and  behoof  of  the  said  grantee, 
his  heirs  and  assigns  forever. 
The  purpose  of  this  clause  is  to  determine  what  estate  passes. 
In  the  clause  above  set  forth  it  provides  that  the  grantee  shall 
have  and  hold  an  estate  in  fee.     The  habendum  and  tenendum 
clause  may  be  used  to  explain  the  premises  of  the  deed  and  per- 
haps qualify  it  (Bedford  Lodge  v.  Lentz,  194  Pa.  399).    But  if 
it  be  repugnant  or  hopelessly  contradictory  to  the  premises,  it 
will  be  rejected  (Karcher  v.  Hoy,  151  Pa.  391).     The  office  of 
the  habendum  and  tenendum  may  be  and  sometimes  is  performed 
in  the  premises  in  which  case  the  habendum  is  not  really  neces- 
sary; however,  it  usually  appears  as  a  printed  part  in  all  forms 
of  deeds. 

(b.)  Covenants  of  Warranty. 

"And  the  said  grantor,  Andrew  Black,  for  himself,  his 
heirs,    executors    and    administrators,    doth    covenant, 
promise  and  agree  to  and  with  the  said  grantee,  his  heirs 
and  assigns,  by  these  presents  that  he  the  said  grantor, 
Andrew    Black,    and   his    heirs ,  all    and    singular    the 
hereditaments  and   premises   hereby   granted   or  men- 
tioned and  intended  so  to  be  with  appurtenances  unto  the 
said  grantee,  his  heirs  and  assigns,  against  him  the  said 
grantor,  Andrew  Black,  and  his  heirs  and  against  all  and 
every  person  and  persons  whosoever  lawfully  claim  or  to 
claim  the  same  or  any  part  thereof  by,  from  or  under 
him,  them  or  any  of  them  shall  and  will  under  and  sub- 
ject as  aforesaid  warrant  and  forever  defend." 
This  clause  is  the  covenant  of  warranty.     A  covenant  is  any 
writing  under  seal  wherein  either  party  may  stipulate  the  truth 
of  certain  facts  or  may  bind  himself  to  perform  or  give  some- 
thing to  the  other  (Mitchell  on  Real  Estate  Conveyancing  437). 
The  most  usual  covenant  found  in  a  deed  is  the  covenant  of  war- 
ranty.    It  had  its  origin,  as  Mr.  Fallon   (Pa.  Law  of  Convey- 
ance 190)  points  out,  in  the  fact  that  in  the  early  history  of  Eng- 
land, conveyances   were  chiefly  made   from   a   superior   to   an 
inferior  as   from  a  baron  to  his   retainer  or    from   father  to 
daughter  upon  her  marriage.     No  examination  of  the  grantor's 
title  was  deemed  necessary  for  the  grantee  relied  solely  upon  his 
grantor's  covenant  of  warrant  or  promise  to  defend  his    (the 
grantee's)    title.      In    modern    conveyancing   the   ancient   war- 
ranty or  guarantee  has  lost  its  importance  because  owing  to  our 
recording  system  a  purchaser  is  in  the  position  to  examine  the 


74  Conveyancing   in   Pennsylvania. 

title  of  the  land  purchased  and  to  ascertain  its  validity  (White- 
head v.  Carr,  5  Watts  369).  Of  the  five  ancient  covenants  for- 
merly appearing  in  old-time  deeds  in  Pennsylvania  only  the 
covenant  of  warranty  has  survived  and  is  the  only  one  necessary 
to  treat  of  here.  The  covenants  of  warranty  are  of  two  kinds: 
Special  and  General. 

(c.)  Meaning  of  Special  and  General  Warranty. — Special  war- 
ranty is  such  as  is  set  forth  above  and  is  the  one  most  generally 
used.  It  is  a  promise  or  covenant  on  the  part  of  the  grantor 
to  defend  the  grantee  against  all  actions,  for  the  land  conveyed 
which  may  be  brought  by  the  grantor  or  his  heirs,  assigns  or 
anyone  claiming  under  the  grantor.  A  general  warranty,  however, 
is  a  covenant  on  the  part  of  the  grantor  to  defend  the  grantee's 
title  against  all  mankind,  the  whole  world.  This,  of  course,  is  an 
unusual  covenant  and  so  harsh  in  its  terms  that  it  is  never  pre- 
sumed to  have  been  intended  unless  expressly  stipulated  for. 
It  amounts  practically  to  an  insurance  of  title.  A  purchaser  has 
no  right  to  expect  a  general  warranty  in  his  deed  unless  he  ex- 
pressly bargains  for  it  (Whitehead  v.  Carr,  5  Watts  368),  and 
it  has  been  held  that  the  words,  in  an  agreement  of  sale  that  the 
words  "vendor  will  well  and  sufficiently  grant,  convey  and  assure 
the  said  tract  of  land  to  the  vendee,  his  heirs  and  assigns,"  en- 
titled the  vendee  to  only  a  special  warranty  (Lloyd  v.  Farrel,  48 
Pa.  78).  A  general  warranty  would  be  created  by  the  following 
words : — 

And  the  said  grantor,  Andrew  Black,  for  himself,  his 
heirs,  executors  and  administrators  doth  covenant, 
promise  and  agree  to  and  with  the  said  grantee,  his  heirs 
and  assigns,  by  these  presents  that  he  the  said  grantor, 
Andrew  Black,  zvill  forever  tvarrant  and  defend  the  said 
property  and  every  part  thereof  unto  the  grantee,  his 
heirs,  executors  and  administrators  against  the  lawful 
claims  and  demands  of  all  persons  whomsoever. 

By  the  Act  of  1909  (Act  of  April  1,  1909,  P.  L.  91,  sees.  5,  6), 
providing  for  a  short  form  of  deed,  the  words  "the  grantor  will 
warrant  generally"  shall  have  the  effect  and  mean  the  same  as 
the  general  warranty  above  set  forth,  and  the  words,  the  grantor 
will  warrant  specially  shall  have  the  same  meaning  and  effect  as 
the  words  set  forth  in  the  special  warranty  on  page  73.  This  act 
will  be  considered  more  fully  later  (Par.  58). 


Instruments  of  Conveyancing.  75 

56.     Meaning  of  Parts  (Concluded).     Conclusion  of  Deed, 
(a.)  Execution  Clause  or  Testimonium. 

In  witness  whereof  the  parties  have  hereunto  inter- 
changeably set  their  hands  and  seals.    Dated  the  day  and 
year  first  above  written, 
bealed  and  delivered  in  the 
presence  of  us : 

(Seal.) 

(Seal.) 

It  will  be  observed  that  the  Indenture  Deed  from  which  the 

above  clause  is  an  extract  retains  the  word  interchangeably 
from  the  old  form  of  indenture  when  it  was  customary  for  the 
grantee  to  sign.  This  the  grantee  no  longer  does,  although  the 
form  persists.  A  deed  poll  omits,  of  course,  the  word  inter- 
changeably and  is  dated  at  the  end  instead  of  at  the  top.  (See 
form  par.  236.) 

(b.)  Receipt. — Following  the  testimonium  or  execution  clause 
is  usually  found  a  receipt  in  the  following  form : — 

"Received  on  the  day  of  date  of  the  above  indenture 
of  the  above-named  grantee  the  full  consideration  money 
hereinbefore  mentioned." 


This  is  signed  by  the  grantor  also,  although  it  is  of  no  value 
where  the  consideration  is  only  nominal. 

(c.)  Acknowledgment  Clause  (See  Act  of  April  1,  1909,  sec. 

8,  P.  L.93)- 

"On  the  7th  day  of  July,  Anno  Domini  one  thousand 
nine  hundred  and  eleven  (1911)  before  me  the  sub- 
scriber, a  notary  public  for  the  Commonwealth  of  Penn- 
sylvania, residing  in  the  City  of  Philadelphia,  personally 
appeared  the  above  named  B.  M.,  and  in  due  form  of  law 
acknowledged  the  above  indenture  to  be  his  act  and  deed 
and  desired  the  same  might  be  recorded  as  such. 

"Witness  my  hand  and  notarial  seal  the  day  and  year 
aforesaid." 

Notary  Public. 
This  is  to  be  signed  by  the  notary  public  or  officer  authorized 
by  law  to  take  acknowledgments.     Execution  of   acknowledg- 
ments and  execution  of  deeds  will  be  considered  more  in  detail  in 
the  later  (Section  III  and  IV). 


?6  Conveyancing  in  Pennsylvania. 

Section  II.    Short  Form  of  Deed. 

57.    Short  Form  of  Deed  Under  Act  of  April  1,  1909. 

The  reader  by  this  time  has  probably  reached  the  conclusion 
that  there  is  much  in  the  form  of  deed  just  examined  and 
analyzed  that  could  without  loss  be  omitted.  And  it  is  doubtless 
true  that  much  of  the  verbiage  could  be  eliminated  for  it  is  merely 
a  survival  of  the  times  when  the  scrivener  or  the  conveyancer 
was  paid  by  the  number  of  words  written;  when  mere  prolixity 
had  its  own  reward.  It  is  not  to  be  wondered,  therefore,  that 
many  jurisdictions  have  by  legislation  provided  for  a  short 
form  of  deed.  In  Pennsylvania  also  by  the  Act  of  April  I,  1909 
(P.  L.  91),  was  adopted  a  short  form  of  deed.  The  title  in- 
surance companies  and  the  older  conveyancers  are,  however, 
loath  to  abandon  the  old  form  and  'to  adopt  the  new.  There  is 
much  to  be  said  on  both  sides.  In  favor  of  the  short  form  the 
best  argument  probably  is  that  it  facilitates  the  recording  and 
saves  time  and  expense.  On  the  other  hand,  the  adherents  of 
the  older  form  point  out  that  this  older  form  has  received  years 
of  judicial  interpretation  and  every  clause  has  a  known  definite 
meaning,  not  only  in  this  jurisdiction  but  in  most  all  common 
law  jurisdiction.  Which  form  will  finally  prevail  cannot  now 
be  determined,  whether  art  will  yield  to  commercialism  or 
whether  the  simplified  form  will  meet  the  fate  of  simplified 
spelling  is  a  question  beyond  us.  We  will  set  forth  the  short 
form  and  leave  the  question  of  its  use  to  the  individual  tastes 
of  conveyancers. 

Act  of  April  i,  1909.     Form. 
The  form  of  deed  provided  for  by  the  Act  of  April  1,  1909,  is 
as  follows: 

This  Deed 

Made  the  seventh  day  of  July,  in  the  year  nineteen  hundred  and 
eleven  (1911)  between  A.  B.,  Blacksmith,  and  C.  D.,  Grocer, 
both  of  the  City  and  County  of  Philadelphia,  State  of  Pennsyl- 
vania. 

WITNESSETH.  That  in  consideration  of  one  ($1.00)  dollar  in 
hand  paid,  the  receipt  whereof  is  hereby  acknowledged,  the  said 
grantor  does  hereby  grant  and  convey  to  the  said  grantee  all 
that  certain  lot  or  piece  of  ground  with  the  messuage  or  tenement 
thereon  erected,  situate  on  the  west  side  of  "Y"  Street  at  the  dis- 
tance of  337  feet  northward  from  the  north  side  of  "X"  Street, 


Instruments  of  Conveyancing.  77 

in  the  Fortieth  Ward  of  the  City  of  Philadelphia,  containing  in 
front  or  breadth  on  the  said  "Y"  Street  18  feet  and  extending  of 
that  width  in  length  or  depth  westward  between  two  parallel 
lines  at  right  angles  with  the  said  "X"  Street  100  feet  to  a  three 
feet  ivide  alley  leading  northward  from  "X"  Street  to  "Z"  Street. 

And  the  said  grantor  does  hereby  covenant  and  agree  that  he 
will  warrant  specially  the  property  hereby  conveyed. 

In  witness  whereof  the  said  grantor  has  hereunto  set  his 
hand  and  seal  the  day  and  year  first  above  written. 

Andrew  Black.     (Seal.) 
State  of  Pennsylvania,        ) 
County  of  Philadelphia.       J 

On  the  seventh  day  of  July,  A.  D.  ipu,  before  me,  John  Smith, 

came  the  above  named  Andrew  Black   and  acknowledged  the 

foregoing  deed  to  be  his  act  and  deed  and  desired  the  same  to  be 

recorded  as  such. 

Witness  my  hand  and  notarial  seal  the  day  and  year  aforesaid. 

John  Smith.     (Seal.) 
Notary  Public. 
My  commission  expires  Feb.  13,  1916. 

58.    Provisions  of  Act  of  April  1,   1909  (P.  L.  91). 
The  first  section  of  this  act  provides : 

Section  i.  Be  it  enacted,  etc.,   That  from  and  after 
the  approval  of  this  act,  in  any  deed  hereafter  executed, 
unless  expressly  limited  to  a  lesser  estate,  the  words 
"grant  and  convey,"  or  either  one  of  said  words,  shall  be 
effective  to  pass  to  the  grantee  or  grantees  named  therein 
a  fee  simple  title  to  the  premises  conveyed,  if  the  grantor 
or  grantors  possessed  such  a  title,  although  there  be  no 
words  of  inheritance  or  of  perpetuity  in  the  deed. 
This  simply  means  that  unless  a  lesser  estate  is  expressly  speci- 
fied in  the  deed,  the  words  grant  and  convey  shall  operate  to  pass 
a  fee  simple  title,  without  the  word  "heirs"  (See  Par.  54-D). 
Section  2  provides: — 

Section  2.  All  deeds  hereafter  executed,  granting  or 
conveying  lands,  unless  an  exception  or  reservation  be 
made  therein,  shall  be  construed  to  include  all  the  estate, 
right,  title,  interest,  property,  claim,  and  demand  whatso- 
ever, of  the  grantor  or  grantors,  in  law,  equity,  or  other- 
wise howsoever,  of.  in,  and  to  the  same,  and  every  part 
thereof,  together  with  all  and  singular  the  improvements, 
ways,  waters,  water-courses,  rights,  liberties,  privileges, 
hereditaments,  and  appurtenances  whatsoever  thereto 
belonging,  or  in  anywise  appertaining,  and  the  reversions 
and  remainders,  rents,  issues,  and  profits  thereof. 


78  Conveyancing  in   Pennsylvania. 

This  means  that  all  appurtenances  and  every  part  of  the  land 
conveyed  passes  with  specific  mention  thereof.  And  any  part  or 
appurtenance  not  intended  to  pass  must  be  expressly  excepted. 

Section  3.  That  the  words  "grant  and  convey,"  or 
either  one  of  said  words,  in  any  deed  hereafter  exe- 
cuted, shall  be  adjudged  an  express  covenant  to  the 
grantee,  his  heirs  and  assigns;  to  wit,  That  the  grantor 
was  seised  of  an  indefeasible  estate  in  fee  simple  in  the 
property  conveyed,  free  from  incumbrances  done  or  suf- 
fered from  the  grantor,  as  also  for  quiet  enjoyment 
against  the  grantor,  his  heirs  and  assigns,  unless  limited 
by  express  words  contained  in  such  deed. 
This  means  the  words  "grant  and  convey"  are  to  be  taken  to 

imply  a  covenant  of  fee  simple  title  and  for  quiet  enjoyment, 

unless  expressly  limited  otherwise. 

Section  4.  That  a  covenant  by  the  grantor  or  grant- 
ors, in  any  deed,  that  he,  they,  or  it  "will  warrant  gen- 
erally the  property  hereby  conveyed,"  shall  have  the 
same  effect  as  if  the  grantor  or  grantors  had  covenanted 
that  he  or  they,  his  or  their  heirs  and  personal  repre- 
sentatives or  successors,  will  forever  warrant  and  de- 
fend the  said  property,  and  every  part  thereof,  unto  the 
grantee,  his  heirs,  personal  representatives  and  assigns, 
against  the  lawful  claims  and  demands  of  all  persons 
whomsoever. 
This  is  self-explanatory. 

Section  5.  That  a  covenant  by  the  grantor  or  grantors 
in  any  deed,  that  he,  they  or  it  "will  warrant  specially 
the  property  hereby  conveyed"  shall  have  the  same 
effect  as  if  the  grantor  or  grantors  had  covenant  that 
he  or  they,  his  or  their  heirs  and  personal  representa- 
tives or  successors,  will  forever  warrant  and  defend  the 
said  property,  and  every  part  thereof,  unto  the  said 
grantee,  his  heirs,  personal  representatives  and  assigns, 
against  the  lawful  claims  and  demands  of  the  grantor  or 
grantors,  and  all  persons  claiming  or  to  claim  by, 
through,  or  under  him  or  them. 
This  is  also  self-explanatory. 

Section  6.  That  whenever  in,  any  deed,  there  shall 
be  used  the  words  "release  and  quitclaim,"  such  deed 
shall  be  construed  as  if  it  set  forth  that  the  grantor  or 
grantors  hath  or  have  remised,  released,  and  quitclaimed, 
and  by  these  presents  doth  or  do  remise,  release,  and  for- 
ever quitclaim,  unto  the  grantee,  his  heirs  and  assigns, 
all  right,  title,   interest,  property,  claim,   and   demand 


Instruments  of  Conveyancing.  79 

whatsoever,  both  in  law  and  in  equity,  in  or  to  the  lands 
or  premises  released,  or  intended  so  to  be,  so  that  neither 
the  grantor  or  grantors,  nor  his  or  their  personal  repre- 
sentatives, his  or  their  heirs  or  assigns,  shall,  at  any  time 
thereafter,  have,  claim,  challenge,  or  demand  the  said 
lands  and  premises,  or  any  part  thereof,  in  any  manner 
whatever. 
This  section  means  that  where  it  is  desired  to  release  any  claim 
to  land  by  what  is  commonly  called  a  quitclaim  deed  (See  form, 
par.  242),  the  words  release  and  quitclaim  are  to  be  substituted 
for  the  words  grant  and  convey  and  shall  have  the  same  meaning 
as  the  old  lengthy  form  of  hath  remised,  released  and  forever 
quitclaimed,  etc.  (see  form,  par.  243). 

SECTION  in. 

Execution  of  Deeds.    Delivery. 
59.    Meaning  of  Term  Execution. 

By  execution  of  a  deed  we  mean  signing  and  sealing.  A  deed 
is  considered  to  be  a  solemn  instrument  and  it  is  presumed 
in  law  that  before  a  party  has  put  his  hand  to  it  he  has  made 
himself  familiar  with  its  contents,  either  by  reading  it  carefully 
himself  or  if  he  cannot  read  by  causing  it  to  be  read  to  him.  As 
a  Chief  Justice  of  the  Supreme  Court  of  Pennsylvania  said,  "If 
a  party  who  can  read  will  not  read  a  deed  put  before  him  for 
execution,  or  if,  being  unable  to  read,  he  will  not  demand  to 
have  it  read  or  explained  to  him,  he  is  guilty  of  supine  negli- 
gence, which,  I  take  it,  is  not  the  subject  of  protection  either  in 
law  or  equity"  (Greenfield's  Estate,  14  Pa.  496).  It  does  not 
follow,  however,  that  once  a  deed  is  signed,  the  injured  or  de- 
ceived party  has  no  redress  against  a  fraud,  misrepresentation 
or  mistake.  The  court  will  relieve  in  a  proper  case  provided  it  is 
shown  that  the  suitor  exercised  reasonable  care  and  diligence. 
Safe  practice  requires  in  all  cases  that  a  party  read  over  the 
instrument  that  he  signs  and  a  careful  conveyancer  will  always, 
where  the  party  is  illiterate,  read  over  and  explain  the  instru- 
ment to  him  before  execution.  To  completely  execute  a  deed  so 
as  to  pass  title,  it  must  be  signed  and  sealed,  attested  and  de- 
livered. 

60.     Signing. 

Historically  sealing  antedates  signing.  In  the  early  times  the 
English  people  generally,  noble  as  well  as  peasant,  could  not 


8o  Conveyancing  in   Pennsylvania. 

write,  hence  at  common  law  the  affixing  of  the  seal  only  was 
necessary  to  the  execution  of  the  deed.  The  Statute  of  Frauds, 
however,  it  will  be  remembered,  required  that  instruments  con- 
cerning real  estate  be  signed.  From  this  time  on,  the  signing 
became  the  important  part  of  the  execution  of  a  deed.  Sealing 
by  itself  is  no  longer  sufficient,  the  deed  must  be  signed. 

A  deed  is  good  if  actually  signed  no  matter  how  poorly  the 
signature  be  written.  If  the  party  is  unable  to  write  he  may 
sign  by  mark,  in  which  event  the  mark  must  be  attested,  i.  e., 
witnessed  by  the  one  who  writes  the  party's  name.  This  is 
usually  done  as  follows : — 

Witness :  his 

Jeremiah  Stone.  Jacob  X  Strong 

mark. 

The  name  of  the  grantor  is  written  out  by  the  witness  and 
the  grantor  then  makes  his  mark  between  his  Christian  and  sur- 
name. The  words,  his  and  mark  are  then  written  respectively 
above  and  below  the  mark  and  the  witness  signs  opposite. 

61.  Sealing. 

As  the  world  outgrew  the  necessities  of  the  age  when  men 
made  seals  because  they  could  not  write,  seals  became  less 
elaborate  and  in  some  states  have  been  abolished  altogether. 
In  Pennsylvania  it  is  still  necessary;  a  deed  still  requires  a 
seal.  Although  a  writing  might  operate  to  convey  land  without 
sealing,  yet  strictly  speaking  it  would  not  be  a  deed.  However, 
in  Pennsylvania,  neither  the  wafer  or  wax  seal  is  required,  nor 
is  any  distinctive  seal  required ;  any  mark  made  opposite  the  name 
and  intended  as  a  seal  will  be  so  considered  (Hacker's  Appeal, 
121  Pa.  192). 

A  deed  of  a  corporation  must  always  be  under  seal,  but  even 
the  seal  of  a  corporation  need  not  necessarily  be  of  any  prescribed 
form.  Any  device  adopted  by  the  corporation  and  intended  as 
its  seal  will  be  so  treated  (Nicholas  v.  Machine  Co.,  7  North 
137). 

62.  Attestation. 

Attestation  means  witnessing.  The  witnessing  of  the  execu- 
tion of  a  deed  by  subscribing  witness  or  witnesses  was  not  neces- 
sary at  common  law  and  is  not  required  in  Pennsylvania  gen- 


Instruments  of  Conveyancing.  8i 

orally  speaking,  though  it  is  usually  done  so  that  in  case  of  any 
dispute  thereafter  it  may  be  known  who  was  present,  in  order 
that  their  testimony  may  be  procured  (Long  v.  Ramsey,  I  S.  & 
R.  72).  There  is,  however,  an  important  exception  to  the  rule  just 
stated,  and  that  is,  "two  subscribing  witnesses"  are  required  where 
conveyance  is  made  to  a  church  or  other  charitable  institution 
or  use  (Sec.  11,  Act  April  26,  1855,  P.  L.  328).  It  is  good 
practice,  therefore,  to  have  subscribing  witnesses  in  all  cases ; 
so  all  exceptions  will  be  provided  against.  Some  states  require 
subscribing  witnesses  and  whenever  a  deed  be  made  conveying 
land  outside  of  Pennsylvania  it  is  safe  practice  to  have  the  execu- 
tion attested  by  two  subscribing  witnesses. 

63.     Delivery  of  Deed. 

After  signing  and  sealing  of  deed  but  one  thing  remains  to 
be  done  in  order  to  vest  title  in  the  grantee,  that  is,  the  deed 
fnust  be  delivered.  A  deed  signed  and  sealed  or  even  acknowl- 
edged does  not  take  effect  until  delivered.  No  ceremony  or  form 
whatever  is  necessary  to  a  valid  delivery.  It  is  a  question  of  in- 
tention (Critchfield  v.  Critchfield,  24  Pa.  100).  It  is  plain  that 
if  the  grantor  prepares  a  deed,  signs  and  seals  it  and  puts  it  in 
his  desk  for  safe  keeping  until  settlement  and  it  is  stolen  by  the 
grantee,  this  is  not  a  delivery  and  the  deed  will  be  of  no  effect 
(Sears  v.  Scranton  Trust  Co.,  228  Pa.  126).  Transfer  of  pos- 
session of  the  deed  is  delivery  and  delivery  will  often  be  pre- 
sumed from  the  facts.  Thus  possession  of  deed  by  grantee  raises 
a  presumption  in  absence  of  evidence  to  the  contrary  that  the 
deed  was  properly  delivered  (Clauer  v.  Clauer,  22  Superior 
Court  395).  And  the  general  rule  is  well  settled  that  where  a 
deed  appears  to  be  signed,  sealed,  delivered,  acknowledged  and 
recorded  a  purchaser  has  a  right  to  act  on  the  faith  that  this  was 
all  done  as  it  purports  to  be  in  proper  form  by  the  proper  parties. 

64.    Delivery  in  Escrow. 

Delivery  is  not  always  absolute,  it  may  be  in  escrow.  That  is 
where  a  deed  is  delivered  to  a  third  person  as  an  escrow  to 
take  effect  upon  the  performance  of  same  conditions  on  the 
part  of  the  grantee.  As  for  example,  where  a  grantor  delivers 
a  deed  to  a  real  estate  broker  with  instructions  to  deliver  it  to 
the  grantee  when  the  grantee  pays  the  purchase  price.  Here  the 
delivery,  as  far  as  the  grantor  is  concerned,  is  complete,  yet  the 


82  Conveyancing  in   Pennsylvania. 

deed  does  not  take  effect  until  the  grantee  complies  with  the 
conditions.  If  the  agent  with  whom  the  deed  is  left  as  an  escrow 
delivers  it  to  the  grantee  without  the  performance  of  the  condi- 
tions, the  title  of  the  grantee  is  voidable,  that  is  it  can  be  avoided 
if  action  be  taken  before  a  bona  fide  purchaser  buys  from  the 
grantee  without  notice  (Blight  v.  Schenk,  10  Pa.  285).  A 
delivery  in  escrow  can  only  be  made  through  a  third  party. 
Delivery  direct  to  grantee  to  be  held  in  escrow  until  conditions 
are  performed  will  not  operate  as  an  escrow,  and  the  law  regards 
the  delivery  as  absolute  (Gish  v.  Brown,  171  Pa.  479). 

65.  Destruction  of  Deed  Does  Not  Revest  the  Property. 

Once  a  deed  is  delivered  title  passes  to  the  grantee  and  can 
only  be  gotten  back  into  the  grantor  by  a  new  deed  of  convey- 
ance. Mere  destruction  of  the  deed  does  not  revest  the  title  in 
the  grantor  (Coleman  v.  Reynolds,  181  Pa.  317). 

SECTION    IV. 

ACKNOWLEDGMENT    AND    PROBATE    OF    DEEDS. 

66.  Necessity  for  and  Meaning  of  Acknowledgment 

We  have  seen  that  signing,  sealing  and  delivery  of  deed  with- 
out more  vests  the  title  in  the  grantee.  Acknowledgment  is  not 
necessary  to  pass  the  title,  but  acknowledgment  is  necessary  in 
order  to  record  the  instrument.  This  practically  makes  acknowl- 
edgment necessary  in  every  case,  for  without  it  there  is  no  pro- 
tection against  the  frauds  which  the  recording  system  has  done 
away  with. 

By  acknowledgment  is  meant  the  appearance  of  the  grantor 
before  an  officer  qualified  by  law  to  take  acknowledgments 
(usually  a  notary),  and  formally  acknowledging  the  execution 
of  the  instrument  as  his  act  and  deed. 

67.  How  Made. 

The  acknowledgment  must  be  made  by  the  grantor  in  person 
and  the  official  taking  the  acknowledgment  while  he  need  not  be 
personally  acquainted  with  the  grantor  should  be  satisfied  as  to 
his  identity  (Comm.  v.  Haines,  97  Pa.  228). 

Acknowledgment  by  a  corporation  is  made  by  one  of  the 
officers  authorized  to  do  so,  either  by  the  president  or  the  secre- 


Instruments  of  Conveyancing.  83 

tary.  The  best  practice  is  to  have  the  acknowledging  clause 
recite  the  fact  that  the  officer  was  authorized  to  do  so  by  resolu- 
tion of  the  board  of  directors.  The  secretary  should  attest  as 
witness  even  where  he  is  the  officer  making  the  acknowledgment. 
(See  form  of  acknowledgment  by  corporation,  par.  211). 

"A  corporation  may  acknowledge  any  deed,  conveyance,  mort- 
gage or  other  instrument  of  writing  by  an  attorney  appointed  by 
such  corporation,  and  such  appointment  may  be  embodied  in  said 
deed,  conveyance,  mortgage  or  other  instrument  of  writing  in 
substantially  the  following  form  (Act  of  May  II,  1901,  Sec.  1. 
P.  L.  171)." 

"The  (name  of  corporation)   doth  hereby  constitute 
and  appoint  (name  of  appointee)  to  be  its  attorney  for 
it,  and  in  its  name  and  as  and  for  its  corporate  act  and 
deed  to  acknowledge  this  (name  of  instrument),  before 
any  person  having  authority  by  the  laws  of  the  Common- 
wealth of  Pennsylvania  to  take  such  acknowledgment,  to 
the  intent  and  purpose  that  the  same  may  be  duly  re- 
corded." 
Section  2  of  the  same  act  also  provides  that  "such  acknowledg- 
ment may  be  made  before  any  person  or  officer  now  or  hereafter 
to  be  authorized  by  the  laws  of  this  Commonwealth  to  take 
acknowledgments  of  deeds  or  other  instruments  of  writing,  whose 
certificate  of  such  acknowledgment  shall  be  in  substantially  the 
following  form : 

I  hereby  certify  that  on  this day  of , 

in  the  year  of  our  Lord and ,  before 

me  the  subscriber  (title  of  officer  taking  acknowledg- 
ment), personally  appeared  (name  of  attorney),  the 
attorney  named  in  the  foregoing  (name  of  instrument), 
and  by  virtue  and  in  pursuance  of  the  authority  therein 
conferred  upon  him,  acknowledged  the  said  (name  of 
instrument)  to  be  the  act  of  the  said  (corporation's 
name). 

Witness  my  hand  and   seal  the  day  and 

year  aforesaid. 

(Seal.) 

Acknowledgments  by  trustees  are  made  the  same  as  by  indi- 
vidual except  that  the  clause  should  recite  that  he  is  a  trustee. 
Although  the  word  trustee  annexed  to  his  name  has  been  held 
sufficient  without  more  (Dail  v.  Moore,  51  Mo.  589)  (See  form, 
par.  209). 

Acknowledgments  by  attorneys  in  fact  should  be  as  the  act 
of  their  principal  as  well  as  their  own  act  (See  form,  par.  210). 


84  Conveyancing  in   Pennsylvania. 

68.  Separate  Acknowledgments  of  Married  Women  Not  Necessary 

in  Pennsylvania. 
In  some  of  the  states,  for  example  New  Jersey,  it  is  still 
necessary  for  an  acknowledgment  of  the  wife  to  be  separate 
and  apart  from  her  husband,  but  in  Pennsylvania,  by  the  Act  of 
April  4,  1901  (P.  L.  67),  this  is  no  longer  required,  and  the 
acknowledgment  of  a  married  woman  may  now  be  taken  as 
though  she  were  a  feme  sole,  that  is,  like  that  of  any  other 
person. 

69.  What  a  Valid  Certificate  of  Acknowledgment  Must  Contain. 
It  has  been  the  policy  of  the  State  of  Pennsylvania  to  prevent 

any  injustice  from  arising  from  any  defects  that  may  happen 
in  the  certificate  of  acknowledgment.  Hence  at  every  session 
of  the  legislature,  which  assembles  biennially,  there  is  usually 
passed  an  act  which  validates  all  acknowledgments  taken  before 
its  passage,  which  may  be  invalid  by  reason  of  omission  or  defects 
of  form.  However,  by  bearing  in  mind  the  few  essentials  that 
are  requisite  to  a  proper  acknowledgment  there  should  be  no 
fear  of  any  defective  acknowledgments. 

The  certificate  of  acknowledgment  to  be  valid  should  always 
contain  these  things : — 

a.  The  date. 

b.  The  venue. 

c.  The  name  of  the  grantor. 

d.  The  signature  of  the  officer  taking  the  acknowledg- 
ment. 

e.  His  official  position. 
/.  His  seal. 

g.  If  a  notary,  the  date  of  the  expiration  of  his  com- 
mission. 
(See  following  form.) 

State  or  Pennsylvania,        ) 

\  ss: 
County  of  Philadelphia,       ) 

On  the  seventh  day  of  July,  Anno  Domini  191 1,  before  me  the 
subscriber,  a  notary  public  for  the  Commonwealth  of  Pennsyl- 
vania, residing  in  the  City  and  County  of  Philadelphia,  personally 
appeared  the  above  named  A.  B.  and  in  due  form  of  law  acknowl- 
edged the  above  indenture  to  be  his  act  and  deed  and  desired  the 
same  might  be  recorded  as  such. 

Witness  my  hand  and  seal  the  day  and  year  aforesaid. 

John  Smith,     (Seal.) 

Notary  Public. 
Commission  expires  June  II,  1913. 


Instruments  of  Conveyancing.  85 

Since  the  Act  of  April  1,  1909,  P.  L.  93,  the  venue  may  possibly 
be  omitted  and  the  form  of  acknowledgment  set  forth  at  the  end 
of  short  form  of  deed,  page  75,  may  be  used  for  all  purposes. 

a.  Date. — The  date  should  appear.  By  this  is  meant  the  date 
when  the  deed  is  acknowledged,  not  when  executed,  although 
the  best  practice  is  to  have  the  deed  acknowledged  as  soon  as  it 
has  been  executed.  The  acknowledgment  may  be  made  at  any 
time  after  execution,  but  the  deed  cannot  be  recorded  until  it  is 
acknowledged. 

b.  Venue. — By  venue  is  meant  the  place  of  residence  of  the 
officer  taking  the  acknowledgment.  In  the  form  above  given 
it  appears  in  the  words,  A  notary  public  of  the  Commonwealth 
of  Pennsylvania  residing  in  the  City  and  County  of  Philadelphia. 
Should  the  officer  be  a  magistrate  or  justice  of  the  peace,  the 
venue  would  read:  A  magistrate  (or  justice  of  the  peace)  of  the 
County  of  Philadelphia,  etc. 

c.  The  name  of  the  grantor  who  makes  the  acknowledgment 
must,  of  course,  appear. 

d.  Signature  of  the  officer  taking  the  acknowledgment  is  obvi- 
ously necessary  to  the  validity  of  the  certification. 

e.  Official  position  of  the  officer  taking  the  acknowledgment 
must  appear  in  order  that  the  authority  of  the  officer  to  take 
acknowledgment  may  appear  on  the  face  of  the  certificate. 

/.  Seal. — The  seal  completes  the  act  of  certification  and  should 
appear  after  the  signature. 

g.  Notary  publics  are  required  in  addition  to  append  the  date 
when  their  commission  expires  under  Act  of  April  4,  1901  (P. 
L.  70.) 

In  view  of  the  Act  of  March  24,  1903,  P.  L.  50,  which 
prohibits  a  director,  officer,  or  stockholder  of  any  bank,  banking 
institution  or  trust  company  from  performing  duties  of  notary 
in  his  company,  an  acknowledgment  or  affidavit  taken  for  any 
bank,  banking  institution  or  trust  company  should  contain  a  cer- 
tification by  the  notary  in  words  such  as  following:  "I  am  not 
a  stockholder,  director  or  officer  of  said  company." 
70.     By  Whom  Acknowledgments  May  Be  Taken. 

Certain  officials  are  usually  designated  in  each  of  the  states 
as  being  empowered  to  take  oaths  and  acknowledgments.  Mr. 
Fallon  (See  Fallon's  Pa.  Law  of  Conveyancing  265)  has  col- 
lected and  classified  all  the  officials  empowered  to  take  oaths  and 


86  Conveyancing  in   Pennsylvania. 

acknowledgments  in  Pennsylvania,  which  he  has  set  forth  as 
follows : 

"Ambassadors,  ministers  plenipotentiary,  charges  d'affaires, 
or  other  persons  exercising  public  ministerial  functions  are 
authorized  by  the  Act  of  April  2,  1859  (P.  L.  353,  sec.  1),  to 
take  acknowledgments  and  proofs  of  deeds,  conveyances,  settle- 
ments, mortgages,  agreements,  powers  of  attorney,  or  other 
instruments  under  seal  relating  to  real  estate,  made  or  executed 
in  a  foreign  country  by  husband  and  wife  in  due  form  of  law. 

Consuls  and  vice-consuls  of  the  United  States  abroad  are  au- 
thorized by  the  Act  of  January  16,  1827  (P.  L.  9,  sec.  1,  9  Sm. 
L.  255),  to  take  acknowledgment  of  husband  and  wife  to  all 
deeds  and  conveyances,  letters  of  attorney  and  instruments  of 
writing  or  proofs  of  their  execution  under  their  official  seal. 
And  by  Act  of  June  1,  1891  (P.  L.  159,  sec.  1),  deputy  consuls, 
commercial  agents,  vice  and  deputy  commercial  agents  or  con- 
sular agents  of  the  United  States  were  authorized  to  take 
acknowledgments  and  probates  of  conveyances,  mortgages  or 
other  instruments  of  writing  (Moore  v.  Miller,  147  Pa.  378). 

Commissioners,  to  be  appointed  by  the  governor  of  Pennsyl- 
vania, in  each  state  of  the  United  States  and  District  of  Co- 
lumbia, are  authorized  by  Act  of  April  14,  1828  (P.  L.  447, 
sees.  1-3),  to  take  acknowledgments  and  proofs  of  execution  of 
any  deed,  mortgage,  or  other  conveyance  of  lands,  contracts, 
letters  of  attorney,  or  any  writing  under  seal  with  same  effect 
as  if  taken  by  a  judge  of  the  Supreme  Court  of  the  United  States. 
Provisions  of  this  act  were  extended  to  commissioners  in  terri- 
tories by  Act  of  April  6,  1843  (P.  L.  175,  sec.  1),  and  to  com- 
missioners in  army  and  navy  to  take  acknowledgment  of  deeds, 
etc.,  for  Chester  and  Lancaster  Counties  by  Act  of  March  27, 
1862  (P.  L.  192).  By  Act  of  April  28,  1876  (P.  L.  52),  com- 
missioners were  authorized  to  take  the  separate  acknowledg- 
ments of  married  women. 

Commissioners  of  the  United  States,  duly  appointed,  author- 
ized and  empowered  to  act  as  such,  by  either  the  circuit  or  dis- 
trict court  or  courts  of  the  United  States  in  and  for  the  eastern, 
western  or  other  districts  of  Pennsylvania,  were  authorized  and 
empowered  by  Act  of  May  24,  1901  (P.  L.  300).  in  any  place 
or  county  within  the  Commonwealth  of  Pennsylvania,  to  admin- 
ister oath  and  affirmations,  to  take  affidavits,  to  take  and  receive 


Instruments  of  Conveyancing.  87 

acknowledgment  or  proof  of  all  deeds,  conveyances,  mortgages, 
leases  and  other  instruments  of  writing  touching  or  concerning 
any  lands  or  other  property  lying  within  or  without  the  Com- 
monwealth of  Pennsylvania,  and  to  take  and  receive  the 
acknowledgment  of  any  feme  covert  touching  the  right  of  dower 
or  conveyance  of  her  estate  or  right  in  or  to  any  such  lands,. . . . 
and  to  take  the  affidavits  of  persons  and  depositions  of  witnesses 
to  be  used  in  any  court  or  before  any  tribunal  in  or  out  of  this 

Commonwealth, and  to  use  his  official  seal  in  the  attestation 

of  all  such  acts. 

Commissioners  to  be  appointed  by  the  governor  of  Pennsyl- 
vania, in  foreign  countries  are  authorized  by  Act  of  April  21, 
1856  (P.  L.  484,  sec.  1-3),  to  take  acknowledgment  and  proof 
of  deed  or  other  conveyance  or  lease  of  lands  lying  in  the  State, 
or  any  contract,  letter  of  attorney  or  other  writing  under  seal. 

Commissioners  in  chancery  in  any  foreign  country  are  author- 
ized by  Act  of  March  23,  1877  (P.  L.  29,  sec.  1),  to  take  acknowl- 
edgment and  probate  of  sales,  conveyances,  mortgages  or  instru- 
ments of  writing  made  by  husband  and  wife. 

Judges  of  the  Supreme  Court  of  the  United  States,  of  the 
District  Court  of  the  United  States,  judges  and  justices  of  Su- 
preme or  Superior  Court,  of  common  pleas  of  any  state  or  terri- 
tory in  the  United  States,  were  authorized  by  Act  of  March  23, 
1819  (P.  L.  144,  7  Sm.  L.  190),  to  take  acknowledgment  of 
husband  and  wife  to  bargains  and  sales,  deeds,  conveyances, 
and  other  instruments  of  writing  concerning  lands,  tenements, 
and  hereditaments,  or  proof  by  the  oath  or  affirmation  of  one 
or  more  of  the  subscribing  witnesses. 

Judges  or  justices  of  probate  court  or  court  of  record  of  any 
state  or  territory  of  the  United  States  were  authorized  by  Act 
of  April  10,  1849  (P-  L.  619,  sec.  8),  under  seal  of  court,  to 
take  acknowledgments  of  husband  and  wife  of  writings  con- 
cerning lands  or  proofs  of  execution  by  one  or  more  of  the  sub- 
scribing witnesses. 

Judges  of  any  court  of  record  in  any  state  or  territory  of  the 
United  States  were  authorized  by  Act  of  April  25,  1850  (P.  L. 
569,  sec.  42),  to  take  acknowledgments  and  proofs  of  execu- 
tion of  deeds,  conveyances,  and  other  instruments  of  writing  of 
and  concerning  lands,  tenements,  and  hereditaments. 

Judges  of  Supreme  Court  of  Pennsylvania,  or  justices  of  com- 
mon pleas  of  county  where  lands  lie,  were  authorized  to  take 


88  Conveyancing  in   Pennsylvania. 

acknowledgments  of  husband  and  wife  by  Act  of  February  24, 
1770  (1  Sm.  L.  307,  sees.  1-3),  to  any  grant,  bargain  and  sale, 
lease,  release,  feoffment,  deed,  conveyance,  or  assurance  for 
lands,  tenements  and  hereditaments;  and  by  Act  of  March  18, 
1775  (1  Sm.  L.  422,  sec.  4),  to  take  probate  where  the  grantor 
and  witnesses  to  any  deed  or  conveyance  are  dead  or  cannot 
be  had. 

Judges  (president)  of  the  common  pleas  were  authorized 
by  Act  of  April  8,  1785  (2  Sm.  L.  317,  sec.  2),  to  take  acknowl- 
edgment and  probate  of  deeds  and  conveyances  of  and  conceiv- 
ing lands  in  any  part  of  the  State. 

Judges  (associate)  of  the  common  pleas  were  authorized  by 
Act  of  April  13,  1791  (3  Sm.  L.  30,  sec.  10),  to  take  acknowl- 
edgment and  probate  of  deeds  and  conveyances  of  and  concern- 
ing lands  in  any  part  of  the  State. 

Justices  of  the  peace  were  authorized  by  Act  of  May  28,  171 5 
(1  Sm.  L.  94,  sec.  3),  to  take  acknowledgment  of  grantors  of 
bargains  and  sales,  deeds  and  conveyances  of  land  and  probate 
of  deed  where  grantor  is  dead  or  cannot  appear.  By  the  Act  of 
September  30,  1791  (3  Sm.  L.  58,  sec.  9),  they  were  authorized 
to  take  proof  or  acknowledgment  of  husband  and  wife  to  all 
instruments  of  writing  of  and  concerning  lands  in  their  county ; 
and  by  the  Act  of  March  18,  1814  (6  Sm.  L.  144),  they  were 
empowered  to  take  acknowledgments  of  deeds  for  lands  in  any 
part  of  the  Commonwealth.  The  acknowledgment  of  a  letter 
of  attorney  before  a  justice  of  the  peace  out  of  the  State,  whose 
certificate  was  authenticated  under  his  private  seal,  was  held 
invalid  (Sweigart  v.  Frey,  8  S.  &  R.  299). 

Mayor  and  recorder  of  the  City  of  Philadelphia,  master  of 
rolls  (abolished  by  Act  of  March  29,  1809)  were  authorized 
by  Act  of  September  30,  1791  (3  Sm.  L.  58,  sec.  9),  to  take  proof 
or  acknowledgment  of  husband  and  wife  to  all  instruments  of 
writing  of  and  concerning  lands  in  their  own  county.  By  Act 
of  April  II,  1799  (3  Sm.  L.  390,  sec.  8),  and  also  Act  of  Jan. 
9,  181 7  (6  Sm.  L.  395),  their  power  was  enlarged  so  as  to 
authorize  them  to  take  acknowledgment  of  deeds  for  lands  in 
any  part  of  the  Commonwealth. 

Mayor  of  Northern  Liberties  was  authorized  to  take  acknowl- 
edgments by  Act  of  April  2,  1850  (P.  L.  312,  sec.  2). 

Mayor,  recorder  and  aldermen  of  Pittsburgh  were  authorized 


Instruments  of  Conveyancing.  89 

to  take  probate  and  acknowledgment  by  Act  of  March  18,  1816 
(6  Sm.  L.  357,  sec.  22). 

Mayor  and  aldermen  of  Allegheny,  by  Act  of  April  13,  1840 
(P.  L.  303,  sec.  17). 

Mayor,  recorder,  and  aldermen  of  Carbondale,  by  Act  of 
March  15,  185 1  (P.  L.  172,  sec.  30). 

Mayor,  recorder,  and  aldermen  of  Scranton,  by  Act  of  April 
23,  1866  (P.  L.  1046,  sec.  31). 

Mayor  and  recorder  of  Williamsport,  by  Act  of  March  22, 
1870  (P.  L.  531,  sec.  16). 

Mayor  and  aldermen  of  Lock  Haven,  by  Act  of  March  28, 
1870  (P.  L.  633,  sec.  27). 

Mayor  and  chief  magistrates  of  foreign  cities,  towns,  or  places 
where  deeds  are  executed,  were  authorized  by  Act  of  May  28, 
1715  (1  Sm.  L.  94,  sec.  4),  to  take  acknowledgment  of  grantor, 
and  by  Act  of  February  24,  1770  (1  Sm.  L.  307,  sec.  3),  they 
were  authorized  to  take  acknowledgment  of  husband  and  wife  to 
all  deeds  and  conveyances. 

Major  or  officer  of  higher  rank  in  military  service  of  the 
United  States  under  commission  from  the  governor  of  this 
State  was  authorized  by  Act  of  April  22,  1863  (P.  L.  572,  sec. 
2),  to  take  acknowledgment  of  deed  or  other  instrument  of 
writing  of  persons  actually  in  service.* 

Notaries  public  in  any  state  or  territory  of  the  United  States 
or  in  any  foreign  country  were  authorized  by  Act  of  April 
22,  1863  (P.  L.  548,  sec.  1),  to  take  acknowledgment  of  husband 
and  wife  or  probate  of  sales,  conveyances,  mortgages,  or  other 
instruments  of  writing  certified  under  seal  of  office. 

Notaries  public  of  Pennsylvania  were  authorized  by  Act  of 
August  10,  1864  (P.  L.  962,  sees.  2,  3),  to  take  acknowledgment 

*By  Act  of  May  21,  1001,  Sec.  I  (P.  L.  271),  any  person  holding  the 
rank  of  major  or  any  higher  rank  in  the  military  service  of  the  United 
States  or  in  Porto  Rico,  the  Philippine  Islands,  or  other  possessions  of  the 
United  States,  whether  in  the  regular  or  volunteer  service,  may  take 
acknowledgments  of  deeds,  mortgages,  or  other  instruments  in  writing. 
So  also  may  such  acknowledgments  be  taken  before  any  civil  officer  in 
the  service  of  the  United  States  in  any  of  such  places  above  referred  to. 

Curiously  enough  no  provision  seems  to  have  been  made  for  the  taking 
of  acknowledgments  before  naval  officers,  though  perhaps  the  word  mili- 
tary may  be  construed  to  cover  naval  officers  of  equivalent  rank.  Cer- 
tainly there  would  seem  to  be  more  necessity  for  naval  officers  to  have  this 
authority  than  the  soldiery. 


90  Conveyancing  in   Pennsylvania. 

or  proof  of  all  deeds,  conveyances,  mortgages,  or  other  instru- 
ments of  writing,  touching  or  concerning  lands,  tenements  or 
hereditaments  in  any  part  of  the  State  made  by  husband  and 
wife  to  same  extent  as  justices  of  the  peace. 

Officer  or  magistrate  of  other  state  with  power  in  his  own  state 
to  take  acknowledgments  was  authorized  by  Act  of  December  14, 
1854  (1855  P.  L.  724,  sec.  1-3),  to  take  acknowledgment  of 
grant,  bargain  and  sale,  release,  or  other  deed  of  conveyance  or 
assurance  of  lands,  provided  the  certificate  of  the  prothonotary 
is  attached  certifying  that  he  is  qualified  by  the  law  of  his  state 
to  take  acknowledgments.  By  Act  of  April  12,  1866  (P.  L.  864, 
sec.  1),  like  power  is  conferred  on  officers  and  magistrates  of  any 
territory  of  the  United  States,  and  by  Act  of  February  23,  1870 
(P.  L.  32,  sec.  1),  like  power  is  extended  to  officers  and  magis- 
trates of  the  District  of  Columbia. 

Prothonotary  of  the  Supreme  Court  of  Northern  District  is 
authorized  by  Act  of  May  13,  1876  (P.  L.  158,  sec.  1),  to  take 
acknowledgment  of  proof  of  deeds  entitled  by  law  to  be  recorded. 

Recorders  of  deeds  were  authorized  by  Act  of  April  16,  1840 
(P.  L.  410,  sec.  7),  to  take  acknowledgment  and  proof  of  execu- 
tion of  any  deed,  mortgage,  or  other  conveyance,  contract,  letter 
of  attorney,  or  any  other  writing  of  and  concerning  lands  lying 
in  the  county  for  which  they  are  appointed,  and  by  Act  of  April 
6,  1859  (P.  L.  383,  sec.  1),  their  power  to  take  acknowledgment 
and  probate  is  made  co-extensive  with  the  power  of  justices  of 
the  peace." 

By  Act  of  April  23,  1909  (P.  L.  156),  acknowledgments  of 
county  treasurers  and  commissioners,  executors  or  administra- 
tors, or  other  persons  acting  in  any  official  or  representative 
capacity  where  now  required  to  acknowledge  deed  or  other  in- 
strument before  a  justice  of  the  peace,  may  acknowledge  the  same 
before  a  notary  public  or  any  other  officials  authorized  by  law 
to  take  acknowledgments. 

71.     Notary  Public.    How  to  Become  One. 

Notaries  public  are,  however,  the  most  usual  officers  before 
whom  acknowledgments  and  affidavits  are  taken.  Any  person, 
male  or  female,  of  good  character,  twenty-one  years  of  age  may 
be  a  notary  in  Pennsylvania.  Secure  an  application  form  by 
writing  to  the  Secretary  of  the  Commonwealth,  Harrisburg,  Pa. 
This  form  must  be  filled  out  according  to  the  instructions  in- 


Instruments  of  Conveyancing.  91 

dorsed  thereon.  It  must  then  be  indorsed  by  the  State  senator 
of  the  senatorial  district  in  which  the  applicant  resides.  The 
application  is  then  forwarded  to  the  private  secretary  of  the 
governor,  together  with  two  letters  of  reputable  citizens  recom- 
mending the  applicant  to  be  a  person  of  good  character.  The 
application  must  also  be  accompanied  by  a  certified  check  for 
$25.00.  If  the  governor  of  the  State  approves  the  application, 
he  appoints  the  applicant  and  if  such  appointment  is  confirmed 
by  the  senate,  the  commission  issues.  This  commission  must 
be  recorded  at  the  office  of  the  recorder  of  deeds  of  the  county 
in  which  the  notary  resides,  and  a  bond  filed,  and  oath  of  office 
taken  at  the  prothonotary's  office.  The  amount  of  bond  varies 
according  to  the  county  for  which  the  notary  is  appointed.  Ten 
thousand  ($10,000.00)  dollars  in  Philadelphia  County;  five  thou- 
sand ($5,000.00)  dollars  in  Allegheny  County  and  three  thou- 
sand ($3,000.00)  dollars  in  other  counties  are  required.  When 
this  is  done  the  notary  may  enter  upon  his  duties.  His  commis- 
sion is  for  four  years. 

Should  the  senate  not  be  in  session  when  the  application  is 
made,  the  governor  is  authorized  by  law  to  issue  a  commission 
which  expires  at  the  expiration  of  the  next  session  of  the  senate. 
When  the  senate  convenes  they  may  confirm  the  appointment 
and  a  new  commission  issues  for  four  years  from  the  date  of 
confirmation. 

A  female  notary  that  marries  must,  before  the  performance  of 
any  notarial  act,  return  her  commission  to  the  governor,  giving 
her  married  name,  whereupon  a  new  commission  will  issue  to 
her  in  her  new  name  for  the  unexpired  term  without  any  ad- 
ditional charge,  although  a  new  bond  must  be  entered. 

By  the  Act  of  April  4,  1901  (P.  L.  70,  sec.  1),  the  notarial 
acts  of  a  notary  done  in  the  State  outside  of  the  county  for  which 
he  was  commissioned  are  now  legalized. 

72.  Probate  of  Deeds  Where  Grantor  Is  Dead  or  Unable  to  Appear. 
By  probate  of  deed  is  meant  proof  of  its  execution  by  other 
means  than  acknowledgment.  This  may  be  done  under  the  Act 
of  May  28,  1715  (1  Sm.  L.  94,  sec.  5),  which  provides  that  if  the 
grantor  is  dead  or  cannot  appear,  the  deed  may  be  proved  by  the 
affidavit  of  the  two  subscribing  witnesses.  By  the  Act  of  March 
18,  1775  (1  Sm.  L.  422),  the  oath  of  one  witness  is  made 
sufficient.     The  usual  method  of  probate  is  to  endorse  on  the 


92  Conveyancing  in   Pennsylvania. 

deed  the  affidavit  of  the  witness  that  he  saw  the  grantor  execute 
the  instrument.  This  affidavit  is  signed  by  the  witness  and  at- 
tested by  the  magistrate  or  justice  of  the  peace.  The  affidavit 
need  not  be  signed  by  the  witnesses  although  it  is  customary 
to  have  them  do  so.  The  attestation  by  the  justice  of  the  peace 
is  the  necessary  thing  (See  forms,  par.  213,  214).  Probate  of  a 
deed  entitles  it  to  be  recorded  even  though  not  acknowledged. 
Should  there  be  no  subscribing  witness  and  any  party  be  dead, 
the  handwriting  of  the  deceased  may  be  proved  before  a  judge 
of  court  and  his  certificate  of  proof  by  two  witnesses  entitled  the 
deed  to  be  recorded  (Act  of  May  25,.  1878,  P.  L.  155,  sec.  1). 


CHAPTER  VI. 
Mortgages. 


Page. 

SECTION    I. 
NATURE     OF     MORTGAGE.        ANALYSIS. 

72.  Definition      of      Mortgage, 

Bond  and  Warrant 93 

74.  History    and    Development 

of  Mortgage  94 

75.  Origin   of  Equity   Redemp- 

tion of  a  Mortgage   ....     95 

76.  Effect  of  a  Mortgage   96 

77.  Form     of     Mortgage     and 

Principal  Parts  Thereof.     96 

78.  Where    Defeasance    is    Not 

Annexed  to  the  Convey- 
ance    • 102 

79.  Certificate   of  Residence  of 

Mortgagee   104 

80.  Formal  Parts  of  the  Bond 

and      Warrant     of     At- 
torney.    Form    104 

81.  Proceedings    on    the    Bond 

and    Warrant    and    on    a 
Mortgage    Compared. 
Mortgagor's  Liability  . . .    108 
SECTION   II. 
WHO   MAY    MAKE   A    MORTGAGE. 

82.  Individuals.  Married 

Women  1 10 

83.  Infants  jii 

84.  Other  Persons  Under  Dis- 

ability       in 

85.  Trustees  in 

86.  Corporations in 

87.  Corporation     Mortgage     to 

Secure  Bond  Issue 112 


Page. 

SECTION   III. 
KINDS   OF    MORTGAGES. 

88.  Purchase      Money      Mort- 

gages    113 

89.  Advance  Money  Montgages  113 

90.  Equitable  Mortgages  115 

91.  First  Mortgages   115 

92.  Second  Mortgages  and  Sec- 

ond Mortgagee  Clause  ..    115 

93.  Building  Association  Mort- 

gages.     Building    Asso- 
ciations      117 

94.  Building  Association  Mort- 

gages  ( Continued  ) . 

Form   119 

95.  Leasehold  Mortgages    129 

96.  Recording  of  Mortgages  . .  130 

SECTION   IV. 
DISCHARGE   OF   MORTGAGES. 

97.  By  Payment  130 

98.  By  Order  of  Court  in  Pro- 

ceedings    to     Satisfy     a 
Mortgage  Presumed  Paid    131 

99.  Discharge   of    Mortgage   by     . 

Release.     Form 132 

100.  Discharge      by      Judicial 

Sale   134 

SECTION   V. 
ASSIGNMENT   OF    MORTGACES. 

101.  Definition.     Form    136 

102.  Effect  of  Assignment  and 

Rights  of  Assignee 138 

103.  Certificate  of  No  Set-Off. 

Form 138 


SECTION   I. 


NATURE  OF  MORTGAGE.      ANALYSIS. 
73.     Definition  of  Mortgage,  Bond  and  Warrant. 

73.     A  mortgage  is  a  pledge  of  an  estate  in  land,  as  collateral 
security  for  the  repayment  of  money  or  performance  of  some 

93 


94  Conveyancing  in   Pennsylvania. 

other  act.  In  form  it  recites  the  fact  that  the  mortgagor  is  under 
obligation  to  pay  a  certain  sum  of  money  at  a  certain  period  and 
to  pay  interest  at  certain  intervals  and  for  the  purpose  of  se- 
curing the  performance  of  these  covenants  certain  land  (de- 
scribed) fs  conveyed  to  the  mortgagee  which  conveyance  is  de- 
feasible on  the  performance  of  the  covenants  set  forth  (see  form 
on  page  96).  Accompanying  a  mortgage,  although  not  necessary 
to  its  validity  we  usually  find  an  instrument  called  a  bond  and 
warrant  which  consists  of  a  bond  or  an  undertaking  to  repay 
the  money  set  forth  at  the  time  fixed,  and  a  warrant  of  attorney 
authorizing  an  attorney-at-law  to  appear  for  and  confess  judg- 
ment for  the  obligee  (see  form,  pages  104,  106). 

The  bond  and  mortgage  are  separate  and  distinct  instruments 
but  are  securities  for  one  and  the  same  debt.  A  mortgage  creates 
a  lien,  as  will  be  hereinafter  explained  on  a  certain  property. 
The  bond  and  warrant  creates  no  lien  until  entered  of  record 
as  a  judgment  when  default  is  made,  when  it  becomes  a  general 
judgment  lien  against  all  of  the  defendant's  real  estate.  In  some 
instances  when  the  mortgaged  premises  have  depreciated  in  value 
and  the  mortgagor  has  other  property  the  advantages  of  proceed- 
ing on  the  bond  and  warrant  are  obvious.  For  this  reason  a  bond 
and  warrant  is  usually  demanded  and  given  along  with  the  mort- 
gage. 

74.    History  and  Development  of  Mortgage. 

A  brief  and  resume  of  the  history  of  the  development  of  mort- 
gages is  interesting  as  well  as  instructive.  The  early  English 
used  two  forms  of  mortgages  or  pledges  of  land,  one  known 
as  the  "vivum  vadium"  and  the  other  as  the  "mortuum  vadium." 
In  a  vivum  vadium  the  land  was  conveyed  to  the  creditor  to  hold 
until  out  of  the  rents,  issues  and  profits  the  creditor  could  pay 
the  debt,  when  the  debtor  was  entitled  to  receive  back  the  land. 
In  the  mortuum  vadium  the  land  was  conveyed  unto  the  creditor, 
who  took  possession  and  held  it  until  the  debt  was  paid;  during 
this  time  the  rents,  etc.,  were  not  applied  to  the  reducing  of  the 
debt,  but  were  retained  by  the  creditor.  Manifestly  this  was  a 
most  vigorous  and  harsh  kind  of  a  pledge,  and  soon  fell  into 
disuse.  Later  this  form  was  modified  so  that  possession  of  the 
land  was  not  given  to  the  creditor  unless  the  debt  was  not  paid 
upon  a  certain  day  fixed.  This  modification  became  the  modern 
mortgage  so  called,  says  Littleton,  "because  if  the  money  was 


Mortgages.  95 

not  paid  on  the  day  fixed  the  land  was  forfeited  and  became  dead 
to  the  mortgagor.  If  it  was  paid  then  the  pledge  became  dead  to 
the  mortgagee."  It  will  be  observed  that  this  mortgage  differed 
from  its  forerunners,  the  vivum  vadium  and  mortuum  vadium 
in  this  very  material  point.  In  the  latter  class  of  pledges  pos- 
session of  the  land  was  given  when  the  debt  was  created  and  the 
instrument  made,  in  the  former  the  mortgagee  or  creditor  never 
was  given  possession  of  the  land  unless  the  mortgage  debt  was 
not  paid. 

75.     Origin  of  Equity  Redemption  of  a  Mortgage. 

The  common  law  form  of  the  mortgage  was  thus  strictly  an 
estate  on  condition.  In  other  words,  if  the  condition  was  per- 
formed, i.  e.,  if  the  money  was  paid  at  the  time  stipulated,  the 
interest  of  the  mortgagee  was  extinguished.  If,  on  the  other, 
the  condition  was  broken,  that  is,  if  the  money  was  not  paid,  an 
absolute  fee  simple  estate  vested  in  the  mortgagee  and  all  right 
of  the  mortgagor  was  gone.  It  frequently  happened  that  land 
of  great  value  was  mortgaged  for  an  amount  equal  to  half  the 
value  and  very  often  less  than  half  value.  The  forfeiture  in  such 
instances  was  a  very  great  hardship  against  which  the  common 
law  courts  could  give  no  relief.  In  such  instances  the  mort- 
gagors turned  to  the  equity  courts  (See  Par.  10  on  Equity,  page 
24)  for  relief.  The  equity  courts  decided  that  while  it  was  true, 
strict  interpretation  of  the  common  law  vested  in  the  mortgagee 
absolute  title  upon  the  breach  of  the  condition  at  the  time  fixed, 
still  justice  required  that  the  mortgagor  be  given  a  further  op- 
portunity to  redeem  the  property  and  if  he  could  pay  back  to 
the  mortgagee  the  debt,  interest  and  costs  he  should  have  his 
land  back.  This  right  to  redeem  the  property  after  forfeiture 
naturally  came  to  be  called  the  "Equity  Redemption."  And  the 
name  still  survives  in  the  term  expression  of  a  person's  "equity" 
in  property  by  which  is  meant,  of  course,  the  interest  a  person 
has  in  a  property  over  and  above  the  mortgage. 

At  first  no  time  was  set  within  which  the  right  of  redemption 
in  equity  had  to  be  applied  for,  and  it  naturally  followed  that  the 
mortgagee  felt  insecure  as  to  his  right  to  the  property  even 
though  the  land  was  forfeited  and  the  mortgagee  had  made  no 
move  in  equity  to  redeem  it.  This  led  to  great  uncertainty  and 
worked  a  hardship  upon  the  mortgagee  since  he  feared  to  im- 
prove the  land  because  his  occupation  might  later  be  disturbed. 


96  Conveyancing   in   Pennsylvania. 

Consequently  the  mortgagees  in  turn  began  to  turn  to  the  equity 
court  for  relief  and  filed  what  was  known  as  a  "bill  of  fore- 
closure," in  which  he  asked  to  have  the  mortgagor's  right  of 
equity  redemption  ended  or  "foreclosed"  as  it  were.  The  equity 
court  would  then  fix  a  certain  day  at  or  before  which  the  debtor, 
that  is  the  mortgagor  was  required  to  pay  his  debt  and  if  he 
failed  to  obey  the  order  of  the  court  the  estate  became  absolutely 
forfeited  to  the  mortgagee.  Of  course,  this  to  a  certain  extent 
again  involved  a  hardship  upon  the  mortgagor,  who  often  was 
willing  but  unable  to  pay  the  money  to  redeem  his  property.  The 
matter  was  finally  and  most  justly  settled  by  a  statute  or  act  of 
Parliament  which  authorized  the  equity  court  to  sell  the  property 
at  the  request  of  either  party  and  to  pay  the  balance  of  the 
proceeds  realized  from  the  sale  to  the  mortgagor.  In  some 
states,  New  Jersey,  e.  g.  foreclosure  suits  are  still  brought  in 
equity.  In  Pennsylvania  and  other  states  by  statute  is  provided 
a  shorter  and  less  costly  method  of  proceeding  by  writ  of  scire 
facias  in  the  common  law  courts. 

76.  Effect  of  a  Mortgage. 

It  will  therefore  be  seen  that  the  modern  mortgage  is  totally 
different  in  its  effect  as  compared  with  the  common  law  form  and 
is  now  to  be  regarded  as  a  pledge  of  an  estate  in  land  to  secure 
the  performance  of  some  act  usually  the  payment  of  money.  It 
becomes  when  recorded  a  lien  against  the  property  which  cannot 
be  divested  by  private  sale  and  if  there  are  no  prior  judgment 
liens  even  by  judicial  sale  of  the  property  under  any  subsequent 
liens. 

77.  Form  of  Mortgage  and  Analysis  of  Principal  Parts  Thereof. 
The  usual  form  of  a  mortgage  in  Pennsylvania  is  as  follows. 

Form  of  Sci.  Fa.  Mortgage.* 

This  Indenture,  made  the  second  day  of  January  in  the  year 
of  our  Lord  one  thousand  nine  hundred  and  seven  (1907)  be- 
tween Andrew  Black,  Grocer,  of  the  City  of  Philadelphia,  State 
of  Pennsylvania,  (hereinafter  called  the  Mortgagor  ),  of  the 
one  part,  and  Richard  Brown,  Gentleman,  also  of  the  City  of 

*This  is  the  regular  printed  form  of  mortgage  which  may  be  purchased 
together  with  the  accompanying  bond  and  warrant  at  any  law  blank 
stationer.  The  words  in  italics  are  to  be  filled  in  by  the  conveyancer  as 
circumstances  may  require. 


Mortgages.  97 

Philadelphia,  State  of  Pennsylvania,  (hereinafter  called  the  Mort- 
gagee    ) ,  of  the  other  part. 

Whereas,  the  said  Mortgagor  ,  in  and  by  a  certain  Obliga- 
tion or  Writing  obligatory  under  his  hand  and  seal  duly  executed, 
bearing  even  date  herewith,  stands  firmly  bound  unto  the  said 
Mortgagee  in  the  sum  of  Seven  Thousand  ($7,000.00)  Dollars 
lawful  money  of  the  United  States  of  America,  conditioned  to 
keep  and  maintain  at  all  times,  unt?l  the  full  discharge  of  the  said 
Obligation,  a  fire  policy  or  policies  of  insurance  in  good  and 
approved  company  or  companies,  duly  assigned  as  collateral  se- 
curity to  the  Mortgagee  or  his  Executors,  Administrators  or 
Assigns,  to  an  amount  not  less  than  Thirty-five  Hundred 
($3500.00)  Dollars,  upon  the  buildings  on  the  premises  herein- 
after described,  and  conditioned  for  the  payment  of  the  just  sum 
of  Thirty-five  Hundred  ($3500.00)  Dollars  lawful  money  as 
aforesaid,  payable  at  the  expiration  of  five  years  from  the  date 
thereof,  together  with  interest  payable  semi-annually  at  the  rate 
of  five  and  four-tents  per  cent,  per  annum,  without  any  fraud  or 
further  delay;  and  for  the  production  to  the  said  Mortgagee  or 
his  Executors,  Administrators  or  Assigns,  on  or  before  the  First 
day  of  September  of  each  and  every  year,  of  receipts  for  all 
taxes  and  water  rates  of  the  current  year  assessed  upon  the  mort- 
gaged premises.  Provided,  however,  and  it  is  thereby  expressly 
agreed,  that  if  at  any  time  default  shall  be  made  in  the  payment 
of  interest  as  aforesaid,  for  the  space  of  thirty  days  after  any 
half-yearly  payment  thereof  shall  fall  due,  or  in  the  prompt  and 
punctual  maintenance  of  said  fire  insurance  so  assigned  as  afore- 
said, or  in  such  production  to  the  Mortgagee  or  his  Executors, 
Administrators  or  Assigns,  on  or  before  the  First  day  of  Septem- 
ber of  each  and  every  year,  of  such  receipts  for  such  taxes  and 
water  rates  of  the  current  year  upon  the  premises  mortgaged,  then 
and  in  such  case  the  whole  principal  debt  aforesaid,  Thirty-five 
Hundred  ($3500.00)  Dollars  shall,  at  the  option  of  the  said 
Mortgagee  or  his  Executors,  Administrators  or  Assigns,  become 
due  and  payable  immediately ;  and  payment  of  said  principal 
debt,  Thirty-five  Hundred  ($3500.00)  Dollars  and  all  interest 
thereon,  may  be  enforced  and  recovered  at  once,  any  thing 
therein  contained  to  the  contrary  notwithstanding.  And  Pro- 
vided Further,  however,  and  it  is  thereby  expressly  argeed,  that 
if  at  any  time  thereafter,  by  reason  of  any  default  in  the  mainte- 
nance of  said  insurance,  or  in  payment,  either  of  said  principal 
sum  of  Thirty-five  Hundred  ($3500.00)  Dollars  at  maturity,  or 
of  said  interest,  or  in  production  of  said  receipts  for  taxes  and 
water  rates,  within  the  time  specified,  a  writ  of  Fieri  Facias  is 
properly  issued  upon  the  judgment  obtained  upon  said  Obliga- 
tion, or  by  virtue  of  said  Warrant  of  Attorney,  or  a  writ  of 
Scire  Facias  is  properly  issued  upon  this  Indenture  of  Mortgage, 
an  attorney's  commission  for  collection,  viz:  five  per  cent.,  shall 
be  payable,  and  shall  be  recovered  in  addition  to  all  principal 


98  Conveyancing   in    Pennsylvania. 

and  interest  besides  costs  of  suit,  as  in  and  by  the  said  recited 
Obligation  and  the  Condition  thereof,  relation  being  thereunto 
had  may  more  fully  and  at  large  appear. 

Now  this  Indenture  witnesseth,  That  the  said  Mortgagor, 
as  well  for  and  in  consideration  of  the  aforesaid  debt  or  princi- 
pal sum  of  Thirty-five  Hundred  ($3500.00)  Dollars  and  for  the 
better  securing  the  payment  of  the  same,  with  interest  as  afore- 
said, unto  the  said  Mortgagee,  his  Executors,  Administrators  and 
Assigns,  in  discharge  of  the  said  recited  Obligation,  as  for  and 
in  consideration  of  the  further  sum  of  One  Dollar  unto  him  in 
hand  well  and  truly  paid  by  the  said  Mortgagee  at  and  before 
the  sealing  and  delivery  hereof,  the  receipt  whereof  is  hereby 
acknowledged,  hath  granted,  bargained,  sold,  aliened,  enfeoffed, 
released  and  confirmed,  and  by  these  presents  doth  grant,  bar- 
gain, sell,  ahen,  enfeoff,  release  and  confirm  unto  the  said  Mort- 
gagee, his  Heirs  and  Assigns,  All  That  Certain  lot  or  piece  of 
ground  with  the  messuage  or  tenement  thereon  erected  Situate 
on  the  West  side  of  Y  Street  at  a  distance  of  three  hundred  and 
Thirty-seven  (337)  feet  Xorthward  from  the  North  Side  of  X 
Street  in  the  Fiftieth  Ward  of  the  City  of  Philadelphia,  Contain- 
ing in  front  or  breadth  on  said  Y  Street  Eighteen  (18)  feet  and 
extending  of  that  width  in  length  or  depth  Ji'estward  between 
two  parallel  lines  at  right  angles  to  the  said  Y  Street  One  Hun- 
dred (100)  feet  to  a  certain  three  feet  wide  alley,  extending 
Northward  from  X  Street  to  Z  Street. 

Being  the  same  premises  which  Edzvard  Frame  and  Wife  by 
indenture  bearing  date  the  Fifth  day  of  July,  A.  D.  1906,  and  re- 
corded in  the  Office  for  the  Recording  of  Deeds  in  and  for  the 
County  of  Philadelphia  in  Deed  Book  W.  S.  V.  Xo.  1196,  Page 
213,  &c,  granted  and  conveyed  unto  the  said  Andrew  Black  in 
fee. 

Together  with  the  free  and  common  use,  right,  liberty,  and 
privilege  of  the  aforesaid  alley  as  and  for  a  passage  way  and 
water  course  at  all  times  hereafter  forever.    And 

Together  with  all  and  singular  the  buildings,  improvements. 
Ways,  Waters,  Water-Courses.  Rights.  Liberties,  Privileges,  Im- 
provements, Hereditaments  and  Appurtenances  whatsoever  there- 
unto belonging,  or  in  any  wise  appertaining,  and  the  Reversions 
and  Remainders,  Rents,  Issues  and  Profits  thereof. 

To  have  and  To  hold  the  said  lot  or  piece  of  ground  with 
buildings  thereon  erected,  Hereditaments  and  Premises  hereby 
granted,  or  mentioned  and  intended  so  to  be,  with  the  Appurte- 
nances, unto  the  said  Mortgagee,  his  Heirs  and  Assigns,  to  and 
for  the  only  proper  use  and  behoof  of  the  said  Mortgagee  his 
Heirs  and  Assigns  forever. 

Provided  always,  nevertheless,  that  if  the  said  Mortgagor  his 
Heirs,  Executors,  Administrators  or  Assigns,  do  and  shall  well 
and  truly  pay,  or  cause  to  be  paid,  unto  the  said  Mortgagee  his 
Executors,    Administrators    or    Assigns,    the   aforesaid    debt   or 


Mortgages. 


99 


principal  sum  of  Thirty-five  Hundred  ($3500.00)  Dollars  on  the 
day  and  time  hereinbefore  mentioned  and  appointed  for  pay- 
ment of  the  same,  together  with  interest  as  aforesaid,  and  shall 
produce  to  the  said  Mortgagee  or  his  Executors,  Administra- 
tors or  Assigns,  on  or  before  the  First  day  of  September  of  each 
and  every  year,  receipts  for  all  taxes  and  water  rates  of  the 
current  year  assessed  upon  the  mortgaged  premises,  and  shall 
keep  and  maintain  said  fire  insurance  so  assigned  as  aforesaid, 
without  any  fraud  or  further  delay,  and  without  any  deduction, 
defalcation,  or  abatement  to  be  made  of  any  thing,  herein  men- 
tioned to  be  paid  or  done,  that  then,  and  from  thenceforth,  as 
well  this  present  Indenture,  and  the  estate  hereby  granted,  as  the 
said  recited  Obligation  shall  cease,  determine  and  become  void, 
any  thing  hereinbefore  contained  to  the  contrary  thereof,  in  any 
wise  notwithstanding.  And  provided  also,  that  it  shall  and  may 
be  lawful  for  the  said  Mortgagee,  his  Executors,  Administrators 
or  Assigns,  when  and  as  soon  as  the  principal  debt  or  sum  hereby 
secured  shall  become  due  and  payable  as  aforesaid,  ir  in  case  de- 
fault shall  be  made  for  the  space  of  thirty  days  in  the  payment  of 
interest  on  the  said  principal  sum,  Thirty-five  Hundred  ($3500) 
Dollars  after  any  semi-annual  payment  thereof  shall  fall  due,  or 
in  the  prompt  and  punctual  maintenance  of  said  fire  insurance 
so  assigned  as  aforesaid,  or  in  case  there  shall  be  default  in  the 
production  to  the  said  Mortgagee  or  his  Executors,  Administra- 
tors or  Assigns,  on  or  before  the  First  day  of  September  of  each 
and  every  year,  of  such  receipts  for  such  taxes  and  water  rates 
of  the  current  year  assessed  upon  the  mortgaged  premises,  to  sue 
out  forthwith  a  writ  or  writs  of  Scire  Facias  upon  this  Indenture 
of  Mortgage,  and  to  proceed  thereon  to  judgment  and  execution, 
for  the  recovery  of  the  whole  of  said  principal  debt,  Thirty-five 
Hundred  ($3500.00)  Dollars  and  all  interest  due  thereon,  to- 
gether with  an  attorney's  commission  for  collection,  viz. :  five 
per  cent.,  besides  costs  of  suit,  without  further  stay,  any  law, 
usage  or  custom  to  the  contrary  notwithstanding. 

In  Witness  Whereof,  the  said  parties  to  these  presents  have 
hereunto  interchangeably  set  their  hands  and  seals.  Dated  the 
day  and  year  first  above  written. 

Sealed  and  delivered  in  the  "| 

presence  of  us:  I  «,,,««» 

Wm.F.Belsterling,  f       Andrew  Black.     (Seal.) 

John  Doe.  J 

On  the  Second  day  of  January,  Anno  Domini  1007,  before  me. 
the  subscriber,  a  Notary  Public  for  the  Commonwealth  of  Penn- 
sylvania, personally  appeared  the  above-named  Andrew  Black 
and  in  due  form  of  law  acknowledged  the  above  Indenture  of 
Mortgage  to  be  his  act  and  deed,  and  desired  the  same  might  be 
recorded  as  such. 


»oo  Conveyancing  in   Pennsylvania. 

Witness  my  hand  and  notarial  seal  the  day  and  year  aforesaid. 

Wm.  F.  Belsterling.    (Seal.) 
Notary  Public. 
Commission  expires  February  I,  ipoi. 

\\y  examination  thereof  it  will  be  seen  that  it  consists  of  two  prin- 
cipal parts;  first  a  conveyance  of  the  property;  and  second  a  de- 
feasance, i.  e.,  a  contemporaneous  agreement  that  the  conveyance 
shall  be  as  security  only. 

The  conveyance  part  extends  from  the  beginning  of  the  instru- 
ment to  the  words  "Provided  Always  Nevertheless."  This  con- 
veyance part  may  in  turn  be  divided  into  two  parts  consisting  of 
(a)  the  premises  or  whereas  clause  and  (b)  the  conveyance 
proper  or  deed. 

(/)  Conveyance  Part. — The  premises  includes  that  part  which 
reads  as  follows : — 

This  Indenture,  made  the  Second  day  of  January  in  the  year 
of  our  Lord  one  thousand  nine  hundred  and  seven  (1907) 
between  Andrew  Black,  Grocer,  of  the  city  of  Philadelphia,  State 
of  Pennsylvania  (hereinafter  called  the  Mortgagor),  of  the  one 
part,  and  Richard  Brown,  Gentlemen,  also  of  the  City  of  Phila- 
delphia, State  of  Pennsylvania  (hereinafter  called  the  Mort- 
gagee), of  the  other  part. 

Whereas,  the  said  Mortgagor,  in  and  by  a  certain  Obligation 
or  Writing  obligatory  under  his  hand  and  seal  duly  executed, 
bearing  even  date  herewith,  stands  firmly  bound  unto  the  said 
Mortgagee  in  the  sum  of  Seven  Thousand  ($7,000.00)  Dollars, 
lawful  money  of  the  United  States  of  America,  conditioned  to 
keep  and  maintain  at  all  times  until,  the  full  discharge  of  the 
said  Obligation,  a  fire  policy  or  policies  of  insurance  in  good  and 
approved  company  or  companies,  duly  assigned  as  collateral  se- 
curity to  the  Mortgagee  or  his  Executors,  Administrators  or 
Assigns,  to  an  amount  not  less  than  Thirty-five  Hundred 
( $3500.00)  Dollars  upon  the  buildings  on  the  premises  herein- 
after described,  and  conditioned  for  the  payment  of  the  just  sum 
of  Thirty-five  Hundred  ($3500.00)  Dollars  lawful  money  as 
aforesaid,  payable  at  the  expiration  of  five  years  from  the  date 
hereof,  together  with  interest  payable  semi-annually  at  the  rate 
of  five  and  four-tenths  per  cent,  per  annum,  without  any  fraud 
or  further  delay;  and  for  the  production  to  the  said  Mortgagee 
or  his  Executors,  Administrators  or  Assigns,  on  or  before  the 
First  day  of  September  of  each  and  every  year,  of  receipts  for  all 
taxes  and  water  rates  of  the  current  year  assessed  upon  the  mort- 
gaged premises.  Provided,  However,  and  it  is  thereby  expressly 
agreed,  that  if  at  any  time  default  shall  be  made  in  the  payment 
of  interest  as  aforesaid,  for  the  space  of  thirty  days  after  any 


Mortgages.  ioi 

half-yearly  payment  thereof  shall  fall  due,  or  in  the  prompt  and 
punctual  maintenance  of  said  fire  insurance  so  assigned  as  afore- 
said, or  in  such  production  to  the  Mortgagee  or  his  Executors, 
Administrators  or  Assigns  on  or  before  the  First  day  of  Sep- 
tember of  each  year  and  every  year,  of  such  receipts  for  such 
taxes  and  water  rates  of  the  current  year  upon  the  premises 
mortgaged,  then  and  in  such  case  the  whole  principal  debt  afore- 
said, Thirty-five  Hundred  ($3500.00)  Dollars  shall,  at  the  op- 
tion of  the  said  Mortgagee  or  his  Executors,  Administrators  or 
Assigns,  become  due  and  payable  immediately;  and  payment  of 
said  principal  debt,  Thirty-five  Hundred  ($3500.00)  Dollars  and 
all  interest  thereon,  may  be  enforced  and  recovered  at  once,  any- 
thing therein  contained  to  the  contrary  notwithstanding.  And 
Provided  Further,  however,  and  it  is  thereby  expressly  agreed, 
that  at  any  time  thereafter,  by  reason  of  any  default  in  the  main- 
tenance of  said  insurance,  or  in  payment,  either  of  said  principal 
sum  of  Thirty-five  Hundred  ($3500.00)  Dollars  at  maturity,  or 
of  said  interest,  or  in  production  of  said  receipts  for  taxes  and 
water  rates,  within  the  time  specified,  a  writ  of  Fieri  Facias  is 
properly  issued  upon  the  judgment  obtained  upon  said  Obliga- 
tion, or  by  virtue  of  said  Warrant  of  Attorney,  or  a  writ  of  Scire 
Facias  is  properly  issued  upon  this  Indenture  of  Mortgage,  an 
attorney's  commission  for  collection,  viz :  five  per  cent,  shall  be 
payable  and  shall  be  recovered  in  addition  to  all  principal  and 
interest  besides  costs  of  suit,  as  in  and  by  the  said  recited  Obliga- 
tion and  the  Conidition  thereof,  relation  being  thereunto  had  may 
more  fully  and  at  large  appear." 

As  will  be  seen  these  premises  recite  the  fact  that  the  mort- 
gagor has  obligated  himself  to  pay  the  sum  of  money  therein  set 
forth  as  well  as  the  conditions  under  which  it  is  payable.  These 
conditions  unusually  include  payment  of  interest  in  half-yearly 
payments  at  the  rate  set  forth ;  insurance  premiums  necessary  to 
be  paid  in  order  to  protect  the  mortgagee  against  the  destruction 
of  the  premises  by  fire ;  a  promise  to  produce  receipts  for  taxes 
assessed  against  the  property  for  the  current  year  on  or  before 
the  date  set  forth  which  is  usually  September  first,  because  there 
is  no  penalty  on  taxes  paid  before  August  31. 

The  failure  to  comply  with  any  of  these  as  the  following  clause 
sets  forth,  makes  the  principal  of  the  mortgage  immediately  due 
and  payable  at  the  option  of  the  mortgagee.  Then  follows  what 
is  known  as  the  Sci.  Fa.  Clause  which  clause  provides  that  the 
mortgagee  shall  have  the  right  to  issue  among  other  writs  a  writ 
of  scire  facias  for  the  collection  of  the  mortgage.  A  writ  of  scire 
facias  is  a  writ  issued  upon  a  record  and  is  expeditious  procedure 
of  obtaining  a  judgment.    It  makes  a  very  efficient  way  of  fore- 


102  Conveyancing   in   Pennsylvania. 

closing  on  a  mortgage  and  appears  therefore  most  always  in  the 
printed  blanks  of  mortgages  used  in  Pennsylvania.  This  pro- 
cedure was  provided  by  the  Act  of  Jan.  12,  1705,  P.  L.  59,  and  its 
legality  has  been  established  by  the  Supreme  Court  of  Pennsyl- 
vania (see  Atkinson  v.  Walton,  162  Pa.  219),  so  that  now  it 
is  the  favorite  method  of  proceeding  to  enforce  the  terms  of  the 
mortgage  although  other  remedies  are  still  open.  Included  in  the 
sci.  fa.  clause  is  also  usually  found  the  agreement  to  pay  an 
attorney's  commission  for  collection  at  the  rate  agreed  on, 
usually  five  per  cent.  This  attorney's  commission  has  been  held 
by  the  courts  to  be  in  the  nature  of  a  penalty  and  subject  to  the 
equitable  control  of  the  court  and  when  excessive  will  be  reduced 
to  a  reasonable  compensation.  However  such  an  agreement  is 
strictly  legal  (Daley  v.  Maitland,  88  Pa.  384;  Cunningham  v.  Mc- 
Cready,  219  Pa.  594). 

(b.)  Conveyance  Proper. — The  other  part,  to  wit,  the  convey- 
ance proper  or  deed  is  a  pure  fee  simple  deed  and  of  course  reads 
exactly  like  a  deed  from  the  consideration  clause  to  the  end  of 
the  habendum  clause.  Only  the  conclusion  and  warranty  clause 
is  omitted  (compare  with  deed  on  page  64).  In  this  part  of 
the  mortgage  is  inserted  the  description  of  the  property  mort- 
gaged (see  form  of  mortgage  page  98)  and  following  it  the 
recital  at  the  conclusion  of  which  is  placed,  should  the  mortgage 
be  a  second  mortgage,  the  appropriate  under  and  subject  clause 
which  in  such  case  would  read  as  follows : — 

Under  and  subject  nevertheless  to  a  certain  mortgage  debt  or 

principal  sum  of Dollars  with  interest  thereon  as  the 

same  may  become  due  and  payable  (form  page  383). 

(2)  Defeasance. — The  remainder  (see  form  page  98),  of  the 
mortgage  is  the  defeasance.  This  is  the  contemporaneous  agree- 
ment which  provides  that  if  the  mortgagee  is  paid  the  principal 
of  the  debt  on  the  day  set  forth  and  the  conditions  set  forth  in 
the  conveyance  part  of  the  agreement  be  faithfully  kept,  then  the 
indenture  and  estate  thereby  granted  as  well  as  the  recited  obli- 
gation or  bond  shall  cease,  determine  and  become  void.  This 
defeasance  clause  therefore  converts  an  apparent  absolute  deed 
into  a  pledge. 

78.     Where  Defeasance  is  not  Annexed  to  the  Conveyance. 

As  above  intimated  although  usually  the  conveyance  part  of  a 
mortgage  and  defeasance  are  always  found  annexed  together  or 


Mortgages.  103 

in  one  instrument,  the  law  does  not  require  them  to  be  annexed 
together,  but  when  separate  they  must  be  executed  in  strict  ac- 
cordance with  the  terms  of  the  Act  of  June  3,  1881,  P.  L.  84. 
The  requirements  of  this  act  are  well  stated  in  the  words  of 
Justice  Gordon  delivering  an  opinion  of  the  Supreme  Court 
where  he  says : — 

"There  is  now  but  one  method  left  by  which  a  deed  absolute  on 
its  face  can  be  reduced  to  a  mortgage ;  the  defeasance  must  not 
only  be  in  writing  and  of  the  same  date  as  that  of  the  deed,  but 
must  also  be  signed,  sealed,  acknowledged  and  delivered  by  the 
grantee  in  the  deed  to  the  grantor.  Furthermore  it  must  be  re- 
corded in  the  recorder  of  deeds'  office  in  the  county  where  the 
land  lies  within  sixty  days  after  the  execution  thereof"  (Sankey 
v.  Harley,  118  Pa.  30.  See  also  Green  v.  Race,  195  Pa.  325. 
Safe  Deposit  Co.  v.  Linton,  213  Pa.  105.  O'Donnell  v.  Vander- 
saal,  213  Pa.  551). 

Under  decisions  of  this  act  a  defeasance  was  not  received  in 
evidence  to  defeat  an  absolute  deed  unless  it  was  made  and  re- 
corded in  accordance  with  the  provisions  of  this  act.  The  pro- 
visions of  this  act,  however,  have  been  modified  in  two  material 
particulars  by  the  Act  of  April  23,  1909,  P.  L.  137,  which  while 
still  requiring  that  the  defeasance  in  order  to  reduce  a  deed  ab- 
solute on  its  face,  to  a  mortgage,  be  in  writing,  signed  and 
delivered  by  the  grantee  to  the  grantor,  it  omits  the  words 
made  at  the  same  time  the  deed  is  made.  Further  this  new 
act  provides  "and  in  so  far  as  it  may  effect  any  subsequent 
grantee  or  mortgagee  of  such  real  estate  for  value"  unless 
it  is  also  acknowledged  and  recorded,  &c,  before  the  execu- 
tion and  delivery  of  such  subsequent  grant  or  mortgage.  The 
words  in  italics  are  not  contained  in  the  old  Act  of  June  3, 
1881  and  are  manifestly  more  equitable  to  both  parties  since  the 
only  ones  who  ought  really  be  protected  by  enforcing  the  re- 
cording are  subsequent  grantees  and  mortgagees  who  have  given 
value  on  faith  of  the  absolute  deed  appearing  on  the  record. 
Thus  is  done  away  with  the  hardship  which  followed  where  the 
intended  mortgagee  claimed  the  benefit  of  the  omission  to  comply 
with  the  technical  requirements  of  the  Act  of  1881,  and  thus  se- 
cured for  himself  a  fee  simple  title  where  he  was  only  meant  to 
have  a  mortgage. 


i04  Conveyancing  in   Pennsylvania. 

In  practice  it  is  best  to  avoid  all  questions  by  adhering  to  the 
form  wherein  the  conveyance  and  defeasance  are  contained  in 
one  instrument. 

79.  Certificate  of  Residence  of  Mortgagees. 

By  the  Act  of  April  29,  1909,  P.  L.  289,  all  Mortgages,  assign- 
ments or  agreements  given  to  secure  the  payment  of  money  at 
interest  must  contain  a  certificate  signed  by  the  mortgagee,  as- 
signee, &c,  or  his  or  her  duly  authorized  Agent  setting  forth  the 
precise  residence  of  the  mortgagee,  assignee  or  party  entitled  to 
the  interest.  The  Recorder  is  bound  under  this  act  to  refuse  to 
receive  for  record  any  such  mortgage  assignment  or  agreement 
unless  it  contains  such  a  certificate  of  Residence.  The  object  of 
this  act  was  to  enable  the  tax  assessors  to  ascertain  the  names 
and  addresses  of  all  persons  who  have  money  at  interest  in  order 
that  they  may  be  properly  taxed.  The  certificate  required  need 
not  be  inserted  in  the  body  of  the  instrument.  Nor  is  it  required 
to  be  any  more  formal  than  a  mere  statement  of  Residence  such 
as  the  following, 

I  hereby  certify  that  my  residence  is  1321  M  Street, 
Philadelphia,  Pa. 

Richard  Brown. 

This  may  be  indorsed  on  the  back  of  the  Mortgage  or  written 
along  the  margin.  This  certificate  need  not  necessarily  be  made 
by  the  mortgagee;  his  agent  or  any  one  cognizant  of  his  address 
may  certify  it. 

80.  Formal  Parts  of  the  Bond  and  Warrant  of  Attorney.     Form. 

Bond  and  Warrant. 

Know  all  Men  by  these  Presents,  That  /,  Andrew  Black, 
Grocer,  of  the  City  of  Philadelphia,  State  of  Pennsylvania  (here- 
inafter called  the  Obligor),  am  held  and  firmly  bound  unto 
Richard  Brozvn,  Gentleman,  also  of  the  City  of  Philadelphia, 
State  of  Pennsylvania  (hereinafter  called  the  Obligee),  in  the 
sum  of  Seven  Thousand  ($7000.00)  Dollars  lawful  money  of 
the  United  States  of  America,  to  be  paid  to  the  said  Obligee  his 
certain  Attorney,  Executors,  Administrators  or  Assigns :  to  which 
payment  well  and  truly  to  be  made,  /  do  bind  and  oblige  myself, 
my  Heirs,  Executors  and  Administrators,  and  every  of  them 
firmly  by  these  Presents.  Sealed  with  my  Seal.  Dated  the  Second 
day  of  January  in  the  year  of  our  Lord  one  thousand  nine  hun- 
dred and  seven  (igoy). 

The  Condition  oe  this  Obligation  is  such,  That  if  the 
above-bounden  Obligor  his  Heirs,  Executors  or  Administrators, 


Mortgages.  105 

or  any  of  them,  shall  and  do  well  and  truly  keep  and  maintain  at 
all  times,  until  the  full  discharge  of  this  obligation,  a  fire  policy 
or  policies  of  insurance,  in  good  and  approved  company  or  com- 
panies, duly  assigned  as  collateral  to  the  Obligee  or  his  Executors, 
Administrators  or  Assigns,  to  an  amount  not  less  than  Thirty-five 
Hundred  ($3500.00)  Dollars,  upon  the  buildings  on  the  premises 
mortgaged  by  the  Mortgage  securing  this  Obligation,  and  shall 
and  do  well  and  truly  pay,  or  cause  to  be  paid  unto  the  above- 
named  Obligee  his  certain  Attorney,  Executors,  Administrators 
or  Assigns,  the  just  sum  of  Thirty-five  Hundred  ($3500.00) 
Dollars  lawful  money  as  aforesaid,  payable  at  the  expiration  of 
live  years  from  the  date  hereof,  together  with  interest  thereon 
payable  semi-annually  at  the  rate  of  live  and  four-tenths  per  cent, 
per  annum,  without  any  fraud  or  further  delay;  and  shall  pro- 
duce to  the  said  Obligee  or  his  Executors,  Administrators  or 
Assigns,  on  or  before  the  First  day  of  September  of  each  and 
every  year,  receipts  for  all  taxes  and  water  rates  of  the  current 
year  assessed  upon  the  mortgaged  premises ;  then  the  above  Obli- 
gation to  be  void,  or  else  to  be  and  remain  in  full  force  and  vir- 
tue: Provided,  however,  and  it  hereby  expressly  agreed,  that  if 
at  any  time  default  shall  be  made  in  payment  of  interest  as  afore- 
said, for  the  space  of  thirty  days  after  any  semi-annual  payment 
thereof  shall  fall  due,  or  in  the  prompt  and  punctual  maintenance 
of  said  fire  insurance  so  assigned  as  aforesaid,  or  in  such  pro- 
duction to  the  Obligee  or  his  Executors,  Administrators  or  As- 
signs, on  or  before  the  First  day  of  September  of  each  and  every 
year,  of  such  receipts  for  such  taxes  and  water  rates  of  the  cur- 
rent year  upon  the  premises  mortgaged,  then  and  in  such  case  the 
whole  principal  debt  aforesaid,  Thirty-five  Hundred  ($3500.00) 
Dollars  shall,  at  the  option  of  the  said  Obligee  his  Executors, 
Administrators  or  Assigns,  become  due  and  payable  immediately, 
and  payment  of  said  principal  debt,  Thirty-five  Hundred 
($3500.00)  Dollars  and  all  interest  thereon,  may  be  enforced  and 
recovered  at  once,  any  thing  herein  contained  to  the  contrary 
notwithstanding.  And,  Provided  further,  however,  and  it  is 
hereby  expressly  agreed,  that  if  at  any  time  hereafter,  by  reason 
of  any  default  in  the  maintenance  of  said  insurance,  or  in  pay- 
ment, either  of  said  principal  sum,  Thirty-five  Hundred 
($3500.00)  Dollars  at  maturity,  or  of  said  interest,  or  in  produc- 
tion of  said  receipts  for  taxes  and  water  rates,  within  the  time 
specified,  a  writ  of  Fieri  Facias  is  properly  issued  upon  the  Judg- 
ment obtained  upon  this  Obligation,  or  by  virtue  of  the  warrant 
of  attorney  hereto  attached,  or  a  writ  of  Scire  Facias  is  properly 
issued  upon  the  accompanying  Indenture  of  Mortgage,  an  attor- 
ney's commission  for  collection,  viz. :  five  per  cent.,  shall  be  pay- 
able, and  shall  be  recovered  in  addition  to  all  principal  and  in- 
terest then  due,  besides  costs  of  suit. 


106  Conveyancing   in   Pennsylvania. 

Sealed  and  delivered  in  the  "^ 
presence  of  us:  L        Andrew  Black_     (Seal) 

vim.  b.  Belsterlmg, 
John  Doe.  ) 

To  Allen  Jones,   Esq.,  Attorney  of  the   Court  of   Common 

Pleas,  at in  the  County  of in  the 

State  of  Pennsylvania,  or  to  any  other  Attorney  of  the  said  Court, 
or  any  other  Court  there  or  elsewhere. 

Whereas,  /,  Andrew  Black,  Grocer,  of  the  City  of  Philadel- 
phia, State  of  Pennsylvania,  in  and  by  a  certain  Obligation,  bear- 
ing even  date  herewith,  do  stand  firmly  bound  unto  Richard 
Brown,  Gentleman,  of  the  City  of  Philadelphia,  State  of  Penn- 
sylvania, in  the  sum  of  Seven  Thousand  ($7000.00)  Dollars  law- 
ful money  of  the  United  States  of  America,  conditioned  to  keep 
and  maintain  at  all  times,  until  the  full  discharge  of  the  said 
Obligation,  a  fire  policy  or  policies  of  insurance,  in  good  and  ap- 
proved company  or  companies,  duly  assigned  as  collateral  to  the 
Obligee  or  his  Executors,  Administrators  or  Assigns,  to  an 
amount  not  less  than  Thirty-five  Hundred  ($3500.00)  Dollars, 
upon  the  buildings  on  the  premises  mortgaged  by  the  Mortgage 
securing  the  said  Obligation,  and  conditioned  for  the  payment  of 
the  just  som  of  Thirty-five  Hundred  ($3500.00)  Dollars  lawful 
money  as  aforesaid,  payable  at  the  expiration  of  five  years  from 
the  date  hereof,  together  with  interest  thereon  payable  semi- 
annually at  the  rate  of  five  and  four-tenths  per  cent,  per  annum, 
and  for  the  production  to  the  Obligee  or  his  Executors,  Adminis- 
trators or  Assigns,  on  or  before  the  First  day  of  September  of 
each  and  every  year,  of  receipts  for  all  taxes  and  water  rates  of 
the  current  year  assessed  upon  the  premises  described  in  the 
Mortgage  accompanying  said  Obligation : 

Provided,  however,  and  it  is  thereby  expressly  agreed,  that  if 
at  any  time  default  shall  be  made  in  payment  of  interest  as  afore- 
said for  the  space  of  thirty  days  after  any  semi-annual  payment 
thereof  shall  fall  due,  or  in  the  prompt  and  punctual  maintenance 
of  said  fire  insurance  so  assigned  as  aforesaid,  or  in  such  pro- 
duction to  the  Obligee  or  his  Executors,  Administrators  or  As- 
signs, on  or  before  the  First  day  of  September  of  each  and  every 
year,  of  such  receipts  for  such  taxes  and  water  rates  of  the  cur- 
rent year  assessed  upon  the  premises  described  in  the  Mortgage 
accompanying  said  Obligation,  then  and  in  such  case  the  whole 
principal  debt  aforesaid.  Thirty-five  Hundred  ($3500.00)  Dol- 
lars shall,  at  the  option  of  the  said  Obligee  his  Executors,  Admin- 
istrators or  Assigns,  become  due  and  payable  immediately,  and 
payment  of  said  principal  debt,  Thirty-five  Hundred  ($3500.00) 
Dollars  and  all  interest  thereon,  may  be  enforced  and  recovered 
at  once,  anything  therein  contained  to  the  contrary  notwithstand- 
ing. And  Provided  further,  however,  and  it  is  thereby  expressly 
agreed,  that  if  at  any  time  thereafter,  by  reason  of  any  default 


Mortgages.  107 

in  the  maintenance  of  said  insurance,  or  in  payment,  either  of 
said  principal  sum,  Thirty-five  Hundred  ($3500.00)  Dollars  at 
maturity,  or  of  said  interest,  or  in  production  of  said  receipts  for 
taxes  or  water  rates  within  the  time  specified,  a  writ  of  Fieri 
Facias  is  properly  issued  upon  the  Judgment  obtained  upon  said 
Obligation,  or  by  virtue  of  this  warrant,  or  a  writ  of  Scire  Facias 
is  properly  issued  upon  the  accompanying  Indenture  of  Mortgage, 
an  attorney's  commission  for  collection,  viz. :  five  per  cent.,  shall 
be  payable,  and  shall  be  recovered  in  addition  to  all  principal  and 
interest  then  due,  besides  costs  of  suit.  These  are  to  desire  and 
authorize  you,  or  any  of  you,  to  appear  for  me,  my  Heirs,  Ex- 
ecutors or  Administrators,  in  the  said  Court  or  elsewhere,  in  an 
appropriate  form  of  action  there  or  elsewhere  brought  or  to  be 
brought  against  me,  my  Heirs,  Executors  or  Administrators,  at 
the  suit  of  the  said  Obligee  his  Executors,  Administrators  or 
Assigns,  on  the  said  Obligation,  as  of  any  term  or  time  past, 
present,  or  any  other  subsequent  term  or  time  there  or  elsewhere 
to  be  held,  and  confess  judgment  thereupon  against  me,  my 
Heirs,  Executors  or  Administrators,  for  the  sum  of  Thirty-five 
Hundred  ($3500.00)  Dollars  lawful  money  of  the  United  States 
of  America,  debt,  besides  costs  of  suit,  and  an  attorney's  com- 
mission of  five  per  cent.,  in  case  payment  has  to  be  enforced  by 
process  of  law  as  aforesaid,  by  Non  sum  informatus,  Nihil  dicit, 
or  otherwise,  as  to  you  shall  seem  meet :  And  for  your,  or  any  of 
your  so  doing,  this  shall  be  your  sufficient  warrant.  And  do 
hereby,  for  myself,  my  Heirs,  Executors  and  Administrators,  re- 
mise, release  and  forever  quit  claim  unto  the  said  Obligee  his 
certain  Attorney,  Executors,  Administrators  and  Assigns,  all  and 
all  manner  of  error  and  errors,  misprisions,  misentries,  defects 
and  imperfections  whatever,  in  the  entering  of  the  said  judgment, 
or  any  process  or  proceedings  thereon  or  thereto,  or  anywise 
touching  or  concerning  the  same. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal 
this  second  day  of  January,  in  the  year  of  our  Lord  one  thousand 
nine  hundred  and  tivelve  (1912). 

Sealed  and  delivered  in  the   ~"\ 

presence  of  us:  I         Andrezv  Black.     (Seal.) 

Wm.  F.  Belsterling, 
John  Doe.  ) 

The  bond  and  warrant  of  attorney  to  confess  judgment  are 
really  two  separate  instruments  although  they  are  usually  spoken 
of  as  if  but  one,  and  this  probably  because  they  are  usually 
fastened  together.  The  bond  itself  as  may  be  seen  from  the 
form  set  forth  above  recites  the  fact  that  the  maker  thereof 
called  the  obligor,  who  is  the  mortgagor  in  the  mortgage,  holds 
himself  indebted  to  the  obligee  in  the  sum  of  seven  thousand 
($7,000.00)  dollars.    The  amount  of  the  bond  is  by  custom  made 


108  Conveyancing  in   Pennsylvania. 

in  double  the  amount  of  the  sum  really  due,  doubtless  in  order  to 
amply  protect  the  obligee  as  to  interest  and  costs,  should  pro- 
ceedings thereon  become  necessary.  Following  the  bond  proper 
which  is  nothing  more  or  less  than  an  acknowledgment  of  in- 
debtedness, comes  the  conditions  of  the  bond.  The  conditions  of 
the  bond  are  the  same  as  those  found  in  the  mortgage,  viz.  to 
maintain  fire  insurance  as  collateral  in  an  amount  equal  to  the 
sum  due  (here  $3,500.00)  upon  the  buildings  on  which  the  mort- 
gage is  made;  to  repay  at  the  expiration  of  the  term  fixed  (here 
five  years)  the  principal  sum  due  (here  $3,500.00)  ;  to  pay  taxes 
and  water  rents  assessed  on  the  mortgaged  premises  and  to  pro- 
duce the  receipts  therefor  at  the  time  fixed  (usually  September 
1st,  every  year)  ;  to  pay  interest  at  the  rate  fixed,  and  the 
whole  principal  sum  at  maturity.  It  then  recites  that  if  these 
conditions  are  performed  the  obligation  or  bond  is  to  become  void 
or  otherwise  to  remain  in  full  force,  virtue  and  effect.  It  pro- 
vides further  that  if  default  is  made  in  the  production  of  the 
taxes  and  water  rate  receipts  or  in  the  payment  of  interest  or 
maintenance  of  the  insurance,  then  the  whole  amount  of  the 
bond  is  to  become  immediately  due  and  payable  and  proceedings 
may  be  commenced  to  recover  the  same,  &c. ;  or  judgment  may 
be  confessed  against  the  obligor  on  the  accompanying  warrant  of 
attorney,  with  an  attorney's  commission  for  collection  of  five  per 
cent.,  added  to  the  amount  due;  or  that  proceedings  might  be 
commenced  on  the  accompanying  indenture  of  mortgage. 

81.  Proceedings  on  the  Bond  and  Warrant  and  on  a  Mortgage  Com- 
pared. Mortgagor's  Liability. 
The  warrant  of  attorney  is  an  instrument  which  provides  the 
person  with  a  short  cut  to  obtain  judgment.  Ordinarily  to  re- 
cover money  due  a  suit  must  be  instituted  which  if  contested 
may  result  in  some  time,  before  a  judgment  can  be  recovered  and 
even  if  uncontested  it  takes  about  three  weeks  before  judgment  can 
be  entered.  Obviously  an  instrument  which  enables  a  judgment  to 
be  placed  on  record  instantly  without  any  delay  whatsoever  is  of 
immense  advantage,  especially  if  it  is  desirable  to  beat  out,  in 
order  to  obtain  a  prior  lien,  some  other  creditor  who  is  suing  to 
obtain  a  judgment.  A  warrant  of  attorney  is  therefore  a  valuable 
addition  to  the  bond  and  proceedings  thereon  afford  a  complete 
remedy  exclusive  of  the  mortgage  proceedings.  A  judgment  so 
entered  becomes  a  general  judgment  lien  not  only  against  the 


Mortgages.  109 

mortgaged  premises  but  against  all  property  owned  by  the  mort- 
gagor at  the  time  the  judgment  is  entered.  But  its  disadvantage 
lies  in  the  fact  that  the  lien  dates  not  from  the  time  the  money 
was  loaned,  but  from  the  time  the  judgment  is  entered.  A  mort- 
gage, however,  is  a  lien  from  the  time  it  is  recorded  against  the 
premises  mortgaged.  It  will  be  seen  therefore  that  by  having  the 
loan  secured  both  by  a  mortgage  and  bond  and  warrant,  the  mort- 
gagee has  his  choice  of  remedies  and  has  not  only  a  remedy 
against  the  property  mortgaged  but  a  personal  right  against  the 
mortgagor. 

How  Personal  Liability  on  Bond  may  be  Avoided.  Straw 
Man. — It  is  to  avoid  this  personal  liability  on  the  bond  that  mort- 
gages are  sometimes  made  by  a  so-called  "straw  man."  That  is,  if 
a  responsible  person  desires  to  have  a  mortgage  placed  upon  his 
property  or  properties  he  is  about  to  buy  without  personal  lia- 
bility, he  causes  the  property  to  be  conveyed  to  some  person 
without  financial  responsibility,  the  straw  man,  and  this  straw 
man  then  executes  the  mortgage  and  bond  and  warrant  to  the 
mortgagee,  then  conveys  the  premises,  subject  to  the  mortgage 
thus  created,  to  the  real  owner.  In  this  way  the  straw  man  only 
is  liable  on  the  bond  and  warrant  and  being  financially  irrespon- 
sible, the  mortgagor,  is  confined  solely  to  his  remedy  on  the 
mortgage.  This  method  of  protecting  oneself  from  personal  lia- 
bility on  a  mortgage  is  usually  practiced  by  persons  who  deal 
extensively  in  real  estate.  Such  men  from  the  very  nature  of 
their  business  cannot  afford  to  be  personally  responsible  for  the 
payment  of  the  principal  of  a  mortgage  after  they  have  conveyed 
away  the  property,  yet  they  would  be  for  the  term  of  the  mort- 
gage if  they  executed  the  bond. 

Where  no  straw  man  is  used  to  create  a  mortgage  the  personal 
liability  of  the  mortgagor  continues  even  after  he  has  parted 
with  the  title,  in  fact  as  long  as  the  mortgage  remains.  The  act 
of  1903  (Act  of  April  28,  1903,  P.  L.  327),  however,  provides  a 
method  by  which  a  mortgagor  who  has  parted  with  the  title  to 
the  mortgaged  premises  may  call  in  his  bond  and  warrant  after 
expiration  of  the  term  of  the  mortgage.  Under  this  act  he  must 
first  tender  the  mortgagee  (or  his  assignee  or  whoever  may  be 
the  holder  of  the  mortgage)  the  full  amount  of  the  mortgage 
principal  with  interest  to  day  of  tender,  and  demand  that  the 
mortgage  be  assigned  to  him.  Upon  refusal  of  the  holder  of  the 
mortgage  to  accept  tender  and  comply  with  the  demand,  the  mort- 


no  Conveyancing   in   Pennsylvania. 

ga.gov  may  petition  court  for  a  decree  relieving  him  of  all  per- 
sonal liability  under  the  bond  and  warrant.  Thereafter  the  holder 
of  the  mortgage  must  look  solely  to  the  land  as  his  security.  This 
act  furnishes  a  full  and  complete  method  of  procedure  and  must 
be  strictly  followed  (Brecht  v.  Bealis,  19  Pa.  D.  R.  664).  The 
decree  obtained  by  the  mortgagor  may  be  indexed  at  the  pro- 
thonotary's  office  and  noted  on  the  margin  of  the  record  of  the 
mortgage  at  the  recorder  of  deeds  office. 

SECTION  11. 

WHO  HAS  AND  WHO  HAS  NOT  POWER  TO  MAKE  A  MORTGAGE. 
82.     Individuals.     Married  Women.  - 

Individuals. — In  general  anyone  having  capacity  to  alienate 
(See  ante  chapter  on  Alienation.  Page  36)  real  property  has 
a  right  to  mortgage  it.  A  married  man  can  mortgage  his  real 
estate  without  his  wife  joining  in  the  mortgage  even  though  he 
cannot  sell.  And  a  purchase  at  a  sheriff's  sale  upon  foreclosure 
of  this  mortgage  takes  it  free  from  the  wife's  interest  of  dower 
(See  Section  on  Dower,  page  186).  Unless  of  course  it  is  made 
with  the  fraudulent  intent  of  barring  the  wife  dower  (McClurg  v. 
Schwartz,  87  Pa.  521).  While  a  husband  can  mortgage  without 
his  wife  joining,  by  Act  of  June  8,  1893  (P-  L.  344,  Sec.  1). 
a  wife  is  forbidden  from  making  a  mortgage  without  her  hus- 
band joining.  Since  the  Act  of  June  4,  1901,  P.  L.  67,  her 
acknowledgment  of  a  mortgage  need  no  longer  be  separate  and 
apart  from  her  husband.  Should  the  wife  be  divorced,  or  if  she 
be  living  separate  from  her  husband  under  articles  of  agreement 
wherein  her  husband  has  released  all  his  rights,  interest  in  her 
property,  then  she  may  convey  or  encumber  or  mortgage  her  es- 
tate as  though  she  were  a  feme  sole  (see  Par.  34-35)  Act  of  June 
9,  1897,  P.  L.  212.  The  purposes  for  which  the  wife  uses 
the  money  obtained  by  a  mortgage  does  not  affect  the  validity  of 
the  instrument,  thus  she  may  mortgage  the  property  to  raise 
money  for  her  husband's  use  (Daubert  v.  Eckert,  94  Pa.  255). 
Or  she  may  mortgage  her  estate  to  secure  a  debt  due  by  her  hus- 
band (Hagenback  v.  Philips,  112  Pa.  284;  Jamison  v.  Jamison, 

3  Wh.  457)- 

Although  a  married  woman  can  not  mortgage  her  estate  without 
the  joinder  of  her  husband  curiously  enough  by  statute  (Act  of 
May  25,  1878,  P.  L.  151,  Sec.  1),  she  is  permitted  to  satisfy  or 
assign  a  judgment  or  mortgage  alone. 


Mortgages.  hi 

83.  Infants. 

Under  this  term  we  include  all  persons  under  twenty-one  years 
of  age.  An  infant,  cannot  make  a  deed  for  reasons  hereinbefore 
set  forth  (see  ante  Par.  32).  And  since  he  cannot  make  a  valid 
deed  it  follows  he  cannot  make  a  valid  mortgage.  Such  a  mort- 
gage if  made  becomes  like  an  infant's  deed,  voidable  and  if  not 
repudiated  within  a  reasonable  time  after  the  infant  arrives  of 
age  it  is  regarded  as  having  been  ratified  and  becomes  binding 
(Johnson  v.  Furnior,  69  Pa.  455). 

84.  Other  Persons  Under  Disability. 

With  regard  to  other  persons  under  disability  such  as  luna- 
tics, etc.,  it  may  generally  be  stated  that  their  power  to  mort- 
gage depends  upon  their  power  to  alienate  or  convey  property. 
This  has  been  already  covered  under  the  chapter  on  alienation 
(ante  page  36).  By  consulting  Chapter  III  Part  III  and  applying 
the  rule  that  whoever  cannot  make  a  deed,  cannot  mortgage,  the 
question  as  to  whether  such  person  has  the  right  to  mortgage  be- 
comes plain. 

85.  Trustees. 

If  a  trustee  has  the  power  given  him  by  the  will  or  deed 
creating  the  trust,  to  sell,  he  is  regarded  as  having  also  the  power 
to  mortgage  without  express  mention  of  it  (Zane  v.  Kennedy,  73 
Pa.  182).  Conversely  if  he  has  no  power  to  sell  he  has  no  power 
to  mortgage  unless  that  right  is  expressly  given. 

86.  Corporations. 

As  set  forth  in  the  chapter  or  alienation  paragraphs  38-39,  a 
corporation  is  so  far  as  it  has  power  to  hold  land  may  alienate  as 
freely  as  an  individual  unless  restricted  by  statute.  One  of  the 
restrictions  by  statute  is  the  power  to  mortgage.  The  power  to 
mortgage  has  been  restricted  by  law  in  Pennsylvania  to  the  ex- 
tent that  certain  conditions  must  be  complied  with  in  order  for 
the  mortgage  to  be  valid ;  these  restrictions  have  been  passed 
mostly  for  the  benefit  of  the  stockholders.  To  avoid  a  reckless 
incurring  of  indebtedness,  the  constitution  of  the  State  of  Penn- 
sylvania adopted  1874  directed,  that  "the  stock  and  indebtedness 
of  corporations  shall  not  be  increased  except  in  pursuance  of  a 
general  law  nor  without  the  consent  of  the  persons  holding  the 
larger  amount  in  value  of  the  stock  first  obtained,  at  a  meeting  to 


ii2  Conveyancing  in   Pennsylvania. 

be  held  after  sixty  days'  notice  given  in  pursuance  of  law."  (Ar- 
ticle XVII  Sec.  7  Constitution  of  Pennsylvania.)  In  1889  was 
passed  the  Act  of  May  21,  P.  L.  257,  which  amended  the  prior  act 
of  April  18,  1874,  and  which  now  allows  corporations  to  borrow 
money  by  bond  and  mortgage  on  their  real  property  to  an  amount 
not  exceeding  one-half  of  their  capital  stock  paid  in  and  at  a  rate 
of  interest  not  to  exceed  six  per  cent,  per  annum.  Corporations 
not  for  profit  are  authorized  by  Act  of  June  25,  1901,  P.  L.  599, 
"to  borrow  money  and  secure  any  indebtedness  (i.  e.  to  mortgage) 
created  by  it  by  issuing  bonds  not  to  exceed  the  sum  of  $500,- 
000.00  with  or  without  interest  coupon  attached  thereto  and  to 
secure  the  same  by  mortgage  or  mortgages,  for  the  use  of  its 
bondholders  upon  its  property  real  and  personal,  and  its  fran- 
chises but  no  such  bond  or  indebtedness  shall  bear  a  rate  of  in- 
terest exceeding  six  per  centum  per  annum." 

It  will  be  seen,  therefore,  that  a  mortgage  by  a  corporation 
must,  in  order  to  be  valid,  comply  with  the  law.  If  it  operates 
to  increase  the  indebtedness  of  the  corporation  the  consent  of 
its  stockholders  must  be  obtained  as  provided  in  the  Constitu- 
tion of  the  State.  If  the  mortgage  is,  however,  only  to  secure 
an  existing  indebtedness,  then  obviously  the  special  consent  of 
the  stockholders  is  not  required  (Ahl  v.  Rhoads,  84  Pa.  319; 
Powell  v.  Blair,  133  Pa.  550).  It  is  to  be  recommended  that  a 
conveyancer  who  is  not  a  member  of  the  bar  should  always 
consult  an  attorney  before  attempting  to  arrange  a  mortgage  for 
a  corporation  client. 

87.     Corporation  Mortgage  to  Secure  Bond  Issue. 

If  the  mortgage  of  the  corporation  is  made  to  an  individual 
mortgagee,  the  form  of  the  mortgage  and  bond  and  warrant  is 
similar  to  an  individual's  mortgage.  See  form  of  Corporation 
Mortgage  in  forms  appended  to  this  book  (par.  258).  Where, 
however,  the  mortgage  is  made  by  a  large  corporation  for  the 
purpose  of  raising  a  large  amount  which  no  single  individual  will 
loan,  then  the  mortgage  is  made  to  a  trustee  for  the  benefit  of 
bondholders  and  the  amount  divided  among  a  number  of  indi- 
viduals. B.  g.,  suppose  a  corporation  desires  to  borrow  $100,- 
000.00  and  to  secure  it  by  a  mortgage  against  its  property  this 
amount  is  divided  into  100  bonds  of  $1,000.00  each.  Each  indi- 
vidual receives  one  bond  for  every  $1,000.00  he  advances.  Sup- 
pose 100  individuals  each  put  up  $1,000.00,  obviously  the  cor- 


Mortgages.  113 

poration  cannot  execute  a  mortgage  to  each  so  it  executes  one 
mortgage  for  $100,000.00  to  a  trustee  who  represents  all  the 
bondholders  (See  form,  par.  259).  If  default  is  made  in  the  pay- 
ment of  the  principal  or  interest  any  bondholder  may  demand  that 
the  trustee  proceed  to  foreclose  and  if  the  trustee  neglects  to  do 
so  the  bondholder  may  by  appropriate  proceedings  in  court  compel 
a  foreclosure  and  sale. 

SECTION    III. 

KINDS  OF   MORTGAGES. 

88.     Purchase  Money  Mortgages. 

A  purchase  money  mortgage,  as  its  name  indicates,  is  a  mort- 
gage given  by  the  vendee  to  the  vendor  as  part  consideration 
for  the  premises.  It  must  be  executed  at  the  same  time  that 
the  deed  is  executed  (Cake's  Appeal,  23  Pa.  186).  But  it  is 
not  necessary  that  it  be  executed  to  the  vendor;  it  may  be 
executed  to  any  nominee  to  whom  the  vendor  has  by  act  and  deed 
assigned  this  right.  This  assignment  need  not  even  be  formally 
made  (for  form,  see  Par.  222). 

An  ordinary  mortgage  becomes  a  lien  from  the  time  it  is  re- 
corded (See  Section  on  Recording,  Par.  126)  notwithstanding  its 
date.  A  purchase  money  mortgage  is  an  exception  and  be- 
comes a  lien  from  its  date,  if  recorded  at  any  time  within  sixty 
days.  Therefore,  if  two  mortgages  are  given  for  the  purchase 
money,  although  recorded  on  different  days,  one  cannot  be  prior 
to  the  other  and  they  are  equal  liens.  A  sheriff's  sale  on  either 
would  divest  the  other  (Pease  v.  Hoag,  11  Phila.  549).  To 
avoid  this  effect,  if  it  is  intended  to  make  one  purchase  money 
mortgage  subject  to  another,  it  should  recite  what  is  called  a 
second  mortgage  clause  (See  Par.  92,  this  section).  Should  the 
purchase  money  mortgage  be  executed  to  some  third  party  it 
is  good  practice  to  take  an  assignment  of  the  vendor's  right  to 
the  purchase  money  mortgage  and  recite  that  fact  in  the  mort- 
gage, though  this  is  not  necessary  (Commonwealth  T.  &  T.  Co.  v . 
Ellis,  192  Pa.  321)  (See  for  form  of  recital,  Par.  281). 

89.    Advance  Money  Mortgages. 

A  mortgage  may  be  given  for  future  advances  to  be  made 
thereafter.     Such  mortgages  are  valid  securities   for  such  ad- 


ii4  Conveyancing  in   Pennsylvania. 

varices  as  soon  as  made,  whether  the  advances  be  made  to 
mortgagor  or  a  third  person  designated  by  him.  Such  mort- 
gages are  known  as  "advance  money  mortgages,"  or  mortgages 
for  future  advances.  They  are  commonly  used  by  builders  to 
raise  money  for  a  building  operation.  Such  a  mortgage  is, 
hower,  a  prior  lien  as  to  subsequent  incumbrances  only  from  the 
time  such  advances  are  actually  made.  Unless  by  the  terms  of 
the  mortgage  an  obligation  is  imposed  upon  the  mortgage  to 
make  all  advances  (Dahlem's  Estate,  175  Pa.  444  (453)).  In 
other  words,  unless  the  mortgagee  actually  binds  himself  abso- 
lutely to  make  the  advances,  the  mortgage  will  only  be  a  lien  as 
to  subsequent  incumbrance  from  the  time  the  money  is  actually 
advanced.  The  justice  of  this  distinction  permits  of  no  argu- 
ment. If  no  money  is  actually  advanced  the  purchase  money 
mortgage  does  not  become  a  binding  lien  against  the  mortgagor 
because  of  the  want  of  consideration.  But  if  the  mortgage  is 
assigned  by  the  mortgagee  to  an  innocent  and  bona  fide  purchaser 
without  notice,  said  mortgage  becomes  an  absolute  and  valid 
lien  against  the  mortgagor.  Since  the  recording  of  the  mortgage 
clothes  it  with  an  apparent  validity  upon  which  innocent  third 
parties  have  a  right  to  rely  (Johnson  v.  McCurdy,  83  Pa.  282). 

The  form  of  an  advance  money  mortgage  is  precisely  the  same 
as  an  ordinary  mortgage  and,  indeed,  it  only  differs  from  the 
ordinary  mortgage  in  that  the  latter  is  given  for  a  past  or  present 
consideration,  whereas  the  former  is  given  for  a  future  consid- 
eration. 

Until  the  recent  decision  of  Page  v.  Carr  (232  Pa.  371 
191 1 ),  the  Mechanics'  Lien  Law  (Act  of  June  4,  1901,  P.  L. 
431,  sec.  13)  gave  mechanics'  liens  a  preference  over  advance 
money  mortgages  as  far  as  the  newly-erected  buildings  or  im- 
provements were  concerned.  The  Supreme  Court,  however,  in 
the  case  just  cited  held  such  preference  unconstitutional  and 
void,  it  being  in  conflict  with  section  7,  Article  III  of  the  Con- 
stitution forbidding  special  legislation.  Mechanics'  liens,  there- 
fore, are  now  in  no  better  position  than  other  subsequent  liens  or 
encumbrances,  and  the  priority  of  advance  money  mortgages 
covers  not  only  the  land  but  the  newly  erected  buildings  and  im- 
provements as  well. 


Mortgages.  115 

90.  Equitable  Mortgages. 

An  equitable  mortgage,  says  Fallon  (Pennsylvania  Law  of 
Conveyancing  383),  is  a  lien  of  such  a  nature  as  will  be  recog- 
nized in  equity  as  a  security  for  the  payment  of  money  and 
will  be  treated  as  a  mortgage.  Like  other  equitable  charges  it 
will  only  be  enforced  against  the  party  whose  action  gives  rise 
to  it  or  those  who  take  the  land  with  notice  of  it  or  take 
the  land  without  giving  a  valuable  consideration  therefor.  Bona 
fide  purchasers  for  value  without  notice  and  subsequent  legal 
mortgagees  for  value  will  not  be  effected  by  these  equitable 
liens.  In  England,  an  equitable  mortgage  can  be  created  by 
merely  depositing  the  title  deeds  with  the  mortgagee,  but  not  in 
Pennsylvania  nor  generally  anywhere  in  this  country  (Shitz  v. 
Dieffenbach,  3  Pa.  233).  Mere  deposit  of  title  deeds  in  Penn- 
sylvania is  of  no  avail  to  create  any  lien  unless  accompanied  by  a 
written  instrument  which  must  be  recorded  (Edward's  Exec'rs  v. 
Trumbull,  50  Pa.  509).  In  fact,  the  only  kinds  of  equitable 
mortgages  that  exist  in  Pennsylvania  are  such  as  may  be  implied 
by  a  court  of  equity  from  the  nature  of  the  transaction  between 
the  parties  or  where  on  account  of  some  informality  in  the  execu- 
tion of  the  instrument  it  cannot  operate  as  a  legal  mortgage  or 
enforced  as  such. 

91.  First  Mortgages. 

Mortgages  are  customarily  referred  to  either  as  "first"  or 
second,  according  to  their  priority.  As  the  name  implies,  a  first 
mortgage  is  a  first  lien  upon  the  property  incumbered.  If  given 
at  the  time  of  the  execution  of  the  deed  it  becomes  a  purchase 
money  mortgage  as  set  forth  in  the  foregoing  paragraph.  A 
first  mortgage  is  regarded  as  the  safest  and  most  desirable  kind 
of  investment.  Trust  funds  are  permitted  by  law  to  be  invested 
In  them. 

92.  Second   Mortgages.     Second   Mortgagee   Clause. 

A  second  mortgage  is  precisely  the  same  as  a  first  class  mort- 
gage except  that  it  is  a  second  lien  on  the  property  mortgaged. 
It,  of  course,  follows  that  it  is  not  as  good  a  security  as  a  first 
mortgage  unless  there  is  ample  margin  between  the  aggregate 
amount  of  the  mortgages  and  the  market  value  of  the  property. 
Ordinarily  it  is  not  necessary  to  recite  the  fact  that  the  mortgage 
is  under  and  subject  to  an  existing  mortgage,  but  it  is  customary 


n6  Conveyancing  in   Pennsylvania. 

to  insert  in  the  second  mortgage  directly  after  the  recital  a  clause 
similar  to  the  one  in  the  deed  form  set  out  in  Par.  53  (consult 
also  form,  Par.  261)  as  follows: 

Under  and  subject  nevertheless  to  the  payment  of  a 
certain  mortgage  debt  or  principal  sum  of  $3,500.00  with 
interest  thereon  as  the  same  may  become  due  and  pay- 
able. 
There  is,  however,  one  very  important  exception  to  the  rule 
just  stated,  and  that  is  where  the  second  mortgage  is  given  by 
the  vendee  at  the  same  time  he  is  taking  title  and  executing  a 
first  mortgage,  the  law  may  imply  both  mortgages  to  be  pur- 
chase money  mortgages,  and  as  such  equal  liens  if  recorded  at 
any  time  within  sixty  days  after  execution.     To  guard  against 
*his  possibility  the  second  mortgage  should  expressly  stipulate 
that  it  is  not  a  purchase  money  mortgage  and  is  to  be  a  second 
lien.     The  following  clause  is  generally  used  for  this  purpose 
and  is  known  as  the  second  mortgage  clause. 

*  "Being  the  same  premises  which  Andrew  Black  by 
indenture  dated  the  12th  day  of  January,  A.  D.  191 1,  and 
intended  to  be  recorded,  granted  and  conveyed  to  the 
said  mortgagor  in  fee.    And  it  is  hereby  expressly  certi- 
fied and  declared  that  it  is  not  a  purchase  money  mort- 
gage and  that  it  is  subject  both  in  lien  and  payment 
to    a    certain    mortgage    to    secure    the    payment    of 
($3500.00)  given  by  said  mortgagor  to  Isaac  Thomas, 
dated  January  12,  A.  D.  ion,  and  intended  to  be  re- 
corded; and  that  the  lien  of  said  mortgage  shall  not  be 
affected  or  impaired  by  a  judicial  sale  wider  a  judgment 
recovered  upon  this  present  indenture  or  upon  the  bond 
secured  hereby;  but  any  such  sale  shall  be  expressly 
advertised  and  made  subject  to  the  lien  of  the  said  mort- 
gage." 
This  clause  is  inserted  as  the  recital  in  the  conveyance  part 
of  the  mortgage,  see  form  Building  and  Loan  Association  Mort- 
gage, page   123,  and   following  the  habendum   is  inserted  this 
clause : 

"Under  and  subject  both  in  lien  and  payment  to  a 
certain  mortgage  to  secure  the  payment  of  $3,500.00 
given  by  the  mortgagor  to  Isaac  Thomas,  dated  January 
12th  as  above  fully  set  forth." 
These  clauses  must  always  be  inserted  in  the  second  mortgage 
where  title  is  passing  and  two  mortgages  are  given.    The  second 
mortgage  must  then  be  dated  and  recorded  subsequent  to  the 
first  mortgage.    It  will  be  seen  that  the  effect  of  this  clause  is  to 


Mortgages.  117 

expressly  disavow  the  implication  that  it  is  a  purchase  money 
mortgage  and  to  declare  it  to  be  subject  both  in  lien  and  pay- 
ment to  the  designated  first  mortgage. 

93.     Building  Association  Mortgages.     Building  Associations. 

Individuals  rarely  care  to  and  financial  institutions  will  not  loan 
money  on  second  mortgages,  hence  arose  the  need  of  an  insti- 
tution to  which  a  frugal  man  of  small  means  could  turn  to  borrow 
sufficient  money  to  build  a  home  or  buy  one.  From  this  need 
developed  that  splendid  institution  of  saving  known  as  the 
Building  Association.  Pennsylvania  is  the  home  of  building  and 
loan  associations,  and  Philadelphia  county  is  the  birthplace. 
The  first  building  and  loan  association  was  organized  in  Frank- 
ford,  Philadelphia  county,  now  part  of  the  city,  in  1831.  They 
have  since  spread  all  over  the  country  and  have  developed  differ- 
ently in  different  states.  However,  the  Pennsylvania  plan  is  still 
regarded  as  the  more  conservative  and  success  full  and  will  here 
be  briefly  explained. 

The  fundamental  principle  upon  which  this  institution  rests 
is  co-operation.  It  was  designed  to  meet  the  needs  of  men 
whose  savings  were  too  small  to  be  put  to  any  substantial  use 
alone.  But  by  combining  the  savings  of  a  number  of  persons  into 
into  an  association  these  small  individual  savings  formed  an  ef- 
fective bulk  sufficient  to  purchase  a  home  for  one  member,  then 
another  and  so  on  until  the  object  for  which  the  association  was 
formed  was  accomplished.  In  the  beginning  these  associations 
actually  purchased  the  land  and  then  erected  houses  which  were 
divided  among  the  members.  Later,  this  practice  fell  into  disuse 
and  the  members  bought  their  own  land  and  built  thereon  a 
house,  borrowing  the  money  from  the  association  and  securing 
the  association  by  a  mortgage.  Nowadays,  when  property  is 
built  so  much  more  cheaply  by  an  operating  builder,  the  building 
associations  mostly  confine  themselves  to  the  loaning  of  money 
on  mortgages  to  enable  the  member  to  purchase  a  house.  But 
the  fundamental  purpose  remains  the  same,  to  wit:  the  aiding 
of  men  of  small  means  to  become  home  owners. 

According  to  the  Pennsylvania  plan,  the  building  association 
is  a  corporation  capitalized  at  usually  one  million  ($1,000,000.00) 
dollars,  which  is  divided  into  5,000  shares  of  $200.00  each. 
These  shares  are  paid  in  on  installments  of  one  dollar  per  month 
per  share  and  the  money  so  received  is  loaned  out  to  the  various 


n8  Conveyancing  in   Pennsylvania. 

members  at  6  per  cent,  interest.  The  payment  of  these  dues  or 
installments  are  continued  until  the  amount  of  the  installments 
paid  in,  together  with  the  earnings  of  the  association,  equals 
$200.00  per  share.  The  stock  is  then  said  to  have  matured  and 
the  amount  of  $200.00  per  share  is  then  credited  to  the  share- 
holders by  being  paid  in  cash  to  those  shareholders  who  have 
not  borrowed  from  the  association  and  by  cancelling  the  debt 
and  satisfying  the  mortgage  of  those  who  have.  The  time  in 
which  the  stock  of  a  building  and  loan  association  will  mature 
depends,  of  course,  upon  the  economy  with  which  the  society 
is  conducted,  the  security  of  loans  and  the  absence  of  losses. 
The  salaries  are  generally  very  small  and  only  the  secretary 
and  treasurer  receive  salaries  out  of  the  association  funds.  A 
conservatively  managed  association  should  mature  its  stock  in 
twelve  years,  i.  c,  after  144  installments  of  $1.00  per  share  have 
been  paid  in.  The  balance  between  the  amount  so  paid  in,  viz: 
$144.00  and  $200.00,  to  wit:  $56.00,  represents  the  accumulated 
earnings  of  the  association  during  the  twelve  years;  this  is  at 
the  rate  of  about  6  per  cent,  compounded.  Some  associations 
have  matured  their  stock  in  nine,  ten  and  eleven  years  and  the 
earnings  in  such  cases  are  proportionately  larger. 

The  loans  of  building  associations  are  made  in  the  following 
manner:  Application  is  made  for  a  loan  on  a  mortgage  against 
the  premises  set  forth  (see  Form  of  Application,  page  119). 
The  premises  are  examined  by  a  visiting  committee,  who  report 
to  the  board  of  directors.  If  the  board  approves  the  loan,  it  is 
granted.  Should  more  than  one  application  be  approved  and  there 
is  not  enough  money  in  the  treasury  to  cover  all,  the  applicants 
may  bid  for  the  preference  of  receiving  the  loan  by  offering  to 
pay  a  premium  of  5,  10  or  15  per  cent,  in  addition  to  the  usual 
interest.  Thus  a  person  borrowing  $1,000.00  would  have  to  pay 
interest  at  the  rate  of  $6  per  cent.,  or  $60.00,  or  $5.00  per  month ; 
a  premium  of  10  per  cent,  bid  would  require  him  to  pay  $5.50  per 
month  instead  of  $5.00;  15  per  cent.,  $5.75,  etc.  In  some  asso- 
ciations the  whole  premium  is  deducted  at  the  beginning.  These 
premiums,  while  in  the  nature  of  usurious  interest  are  expressly 
permitted  and  declared  legal  by  law ;  but  they  must  result  from 
competitive  bidding,  otherwise  they  are  usurious  and  may  be 
recovered  back  (Stiles'  Appeal,  95  Pa.  122).  A  by-law  stipu- 
lating a  fixed  premium  is  illegal   (Land  Title  &  Trust  Co.  v. 


Mortgages.  119 

Fulmer,  24  Pa.  S.  C.  265 ;  see  also  Roeser  v.  German  Nat.  B.  & 
L.  Assn.,  32  Pa.  S.  C.  100). 

Form  of  Building  and  Loan  Association  Application.* 

Philadelphia,  Oct.  1,  1912. 
To  the  President  and  Directors  of  the 

X.  Y.  BUILDING  AND  LOAN  ASSOCIATION. 

Application  is  hereby  made  for  a  loan  of  $800.00,  to  be  secured 
by  the  assignment  of  four  shares  of  the  stock  of  this  association 
and  by  a  second  mortgage  for  $800.00,  subject  to  all  rules,  regu- 
lations, constitution  and  by-laws  of  said  association,  upon  prop- 
erty consisting  of  a  lot  of  ground  situate  525  "F"  Street,  in  the 
Fiftieth  Ward  of  the  City  of  Philadelphia. 
The  size  thereof  is  16  feet  j  inches  front,  by  65  feet  deep. 
On  which  is  erected  a  two-story  brick  dwelling. 
The  size  of  which  is  16  feet  by  45  feet. 
How  occupied?    By  owner. 
If  rented,  what  rent?    $20.00. 
Value,  $3,000.00.    Purchase  price,  $3,000.00. 
Assessed  value,  $2,800.00. 
What  fire  insurance,  and  where  ?    Satisfactory. 
Is  title  insured  and  where?    Satisfactory. 
Name  of  mortgagor,  Allen  Green. 
Name  of  present  owner,  Allen  Green. 
What     incumbrance    against    the    property?    First    mortgage, 

$1,200.00. 
How  long  have  buildings  been  completed?    Two  years. 
What  repairs  have  been  made  within  6  months?    None. 
What  street  improvements  within  6  months?    None. 
By  whom  is  property  occupied  ?    Owner. 
Remarks, 

A  committee  fee  of  $1.50  accompanies  this  application. 

Allen  Green, 
Address,  525  "F"  Street. 

94.     Building  Association  Mortgages  (Continued).     Forms. 

A  building  association  mortgage  differs  from  an  ordinary 
straight  mortgage  in  that  they  are  given  to  secure  the  monthly 
payments  of  dues,  interest,  etc.,  for  such  length  of  time  as  may 
be  required  for  the  stock  to  mature.     Mr.  Justice  Fell,  of  the 

*This  is  the  regular  printed  form  of  application.  The  words  in  italics 
show  how  it  is  to  be  filled  in.  Most  building  and  loan  associations  have 
their  own  forms,  which  the  secretary  or  solicitor  will  supply  upon  appli- 
cation. 


120  Conveyancing   in   Pennsylvania. 

Pennsylvania  Supreme  Court,  says  ( Freemansburg  B.  &  L. 
Ass'n  v.  Watts,  199  Pa.  221):  "In  carrying  out  the  plan  on 
which  building  associations  are  organized  and  conducted,  it  is 
not  intended  or  required  that  a  stockholder  who  borrows  from 
the  association  will  discharge  the  debt  he  incurs  by  direct  pay- 
ments on  account  of  it.  He  pays  at  stated  periods  dues  on  his 
stock,  the  interest  on  the  money  borrowed  and  when  the  pre- 
mium bid  for  the  loan  has  not  been  deducted,  the  installments 
on  it.  When  by  the  receipt  of  dues,  interest,  premium  and  fines 
for  non-payment  of  dues,  all  the  stock  of  the  association  or  of 
the  series  to  which  the  borrowed  stock  belongs  becomes  full 
paid  or  matured,  the  value  of  his-  stock  equals  the  amount  of 
his  debt,  and  the  transaction  is  ended  by  the  surrender  of  the 
stock  by  him  and  the  cancellation  of  his  obligation  to  the  associa- 
tion." By  consulting  the  form  of  a  building  and  loan  associa- 
tion and  bond  and  warrant  the  explanation  of  the  transaction 
by  Justice  Fell  becomes  exceedingly  simple  to  understand.  The 
borrower  may  borrow  $200.00  for  each  share  of  stock  he  holds. 
Thus,  to  borrow  $1,000.00  he  must  have  five  shares  of  stock,  so 
that  at  maturity  the  amount  of  his  stock  equals  the  loan.  The 
stock  so  subscribed  for  is  assigned  as  collateral  security,  together 
with  a  mortgage  on  the  property  to  the  association. 

These  mortgages  are  usually  made  out  for  one  year  but  this  is 
a  mere  form  and  they  cannot  be  foreclosed  at  the  expiration  of 
one  year  or  at  any  time  before  maturity  of  the  stock  unless  tne 
borrower  is  more  than  six  months  in  the  arrears  in  the  payments 
of  his  dues,  interest,  &c.  (Act  of  April  10,  1879,  P.  L.  16,  Sec.  5).* 
But  while  the  association  cannot  compel  the  repayment  of  the 
principal  sum  loaned  to  a  borrower  who  keep  in  good  standing, 
the  borrower  has  the  privilege  at  any  time  of  paying  off  the 

*The  only  decision  on  this  exact  point  is  Mt.  Vernon  Building  and  Loan 
Association  v.  Brown  et  al.,  an  unreported  case  decided  by  C.  P.  1  Phila- 
delphia County,  as  of  Dec.  Term  1909,  No.  2723,  in  which  the  court,  in 
discharging  the  plaintiff's  rule  for  judgment  for  want  of  a  sufficient  affi- 
davit of  defence,  filed  the  following  brief  opinion,  to  wit :  "We  think  that 
the  language  of  the  mortgage  indicated  it  was  to  run  for  more  than  one 
year.  Rule  discharged."  The  mortgage  in  question  contained  the  same 
provision  as  to  the  time  of  payment  of  the  principal  as  appears  in  the  usual 
form  of  B.  &  L.  Ass'n  mortgages  (see  form,  page  121)  viz:  "at  any  time 
within  one  year  from  the  date  thereof."  See  also  on  this  point  the  com- 
munication of  Geo.  A.  Drovin,  Esq.,  published  in  67  Leg.  Intell.  672.  Also 
the  suggestions  of  Arthur  Boswell,  68  Leg.  Intell.  20. 


Mortgages.  121 

whole  loan  and  receiving  back  his  stock  pledged  as  collateral 
(Wrenn  v.  Southwark  Bldg.  &  Loan  Assn.,  20  D.  R.  625). 

Building  association  mortgages  may  be  either  first  or  second. 
Some  associations  only  lend  on  first  mortgages.  Such  associa- 
tions forget  the  purposes  for  which  they  are  formed,  viz.  to  assist 
small  borrowers.  Nor  is  their  position  very  logical  for  there  is 
little  difference  between  loaning  $4,000.00  on  one  mortgage  and 
loaning  a  second  mortgage  of  $1,000.00  above  a  first  mortgage 
of  $3,000.00;  the  total  amount  of  the  incumbrance  is  the  same. 
But  in  the  latter  case  the  association  has  reduced  the  expenses  of 
the  borrower  by  permitting  him  to  borrow  a  straight  mortgage 
at  five  or  five  and  four-tenths  per  cent,  on  $3,000.00  so  lightening 
his  burden.  At  the  same  time  the  association  is  enabled  to  assist 
four  stockholders  where  the  other  association  only  assists  one 
and  in  addition  avoids  the  very  just  criticism  of  "not  having  all 
its  eggs  in  one  basket."  The  majority  of  the  associations  there- 
fore will  loan  on  second  mortgages.  The  form  here  given  is  a 
second  mortgage.  It  differs  only  from  a  building  and  loan 
association  first  mortgage  in  that  it  has  an  under  and  subject 
clause  after  the  recital  and  in  the  "habendum."  Remember, 
however,  if  it  be  given  at  the  time  the  borrower  takes  title  and 
executes  a  first  mortgage,  a  second  mortgagee  clause  must  be  in- 
serted as  set  forth  in  paragraph  92,  else  it  may  be  regarded 
as  a  purchase  money  mortgage  and  equal  in  lien  with  the  first 
mortgage. 

Building  and  Loan  Association  Mortgage. 

This  Indenture,  made  the  third  day  of  January,  in  the 
year  of  our  Lord  one  thousand  nine  hundred  and  twelve 
(1012),  between  John  Smith,  gentleman,  of  the  City  of  Phila- 
delphia, State  of  Pennsylvania,  of  the  one  part  (mortgagor), 
and  the  X.  Y.  Z.  Building  and  Loan  Association  of  the  other 
part  (hereinafter  called  the  mortgagee). 

Whereas,  the  said  mortgagor,  in  and  by  a  certain  obligation 
or  writing,  obligatory  under  his  hand  and  seal  duly  executed, 
bearing  even  date  herewith,  stands  bound  unto  the  said  mort- 
gagee in  the. sum  of  twelve  hundred  ($1,200.00  dollars),  lawful 
money  of  the  United  States  of  America,  conditioned  to  keep 
and  maintain  at  all  times,  until  the  full  discharge  of  the  said 
obligation,  a  policy  or  policies  of  fire  insurance  in  good  and 
approved  company  or  companies,  duly  assigned  as  collateral 
security  to  the  mortgagee  or  its  successors  or  assigns,  to  an 
amount  not  less  than  six  hundred  ($600.00)  dollars,  upon  the 


122  Conveyancing   in   Pennsylvania. 

buildings  on  the  premises  hereinafter  described,  and  conditioned 
for  the  payment  of  the  just  sum  of  six  hundred  ($600.00)  dol- 
lars, at  any  time  within  one  year  from  the  date  thereof,  together 
with  interest  thereon  for  the  same,  in  like  money,  payable 
monthly,  at  the  rate  of  six  (6%)  per  cent,  per  annum,  and 
together  with  all  fines  imposed  by  the  constitution  and  by-laws 
of  the  aforesaid  association,  on  the  second  Monday  of  each  and 
every  month  thereafter,  and  should  also  well  and  truly  pay,  or 
cause  to  be  paid  unto  the  said  mortgagee,  its  successors  and  as- 
signs, the  sum  of  three  ($3.00)  dollars,  on  the  said  second  Mon- 
day of  each  and  every  month  thereafter,  as  and  for  the  monthly 
contribution  on  three  (3)  shares  of  the  capital  stock  of  the  said 
mortgagee,  now  owned  by  the  said  mortgagor  without  any 
fraud  or  further  delay;  and  for  the  delivery  to  the  said  mort- 
gagee, its  successors  or  assigns,  on  or  before  the  first  day  of 
September  of  each  and  every  year,  receipts  for  all  water  rent 
and  taxes  of  the  current  year  assessed  upon  the  hereinafter 
described  premises.  Provided,  however,  and  it  is  thereby  ex- 
pressly agreed,  that  if  at  any  time  default  should  be  made  in 
the  payment  of  the  said  principal  money  when  due,  or  of  the 
said  interest,  or  of  the  said  fines,  or  the  monthly  contribution  on 
said  stock,  for  the  space  of  six  months  after  any  payment  thereof 
should  fall  due,  or  in  the  prompt  and  punctual  maintenance  of 
said  fire  insurance  so  assigned  as  aforesaid,  or  in  such  delivery 
to  the  said  mortgagee,  its  successors  or  assigns,  on  or  before 
the  first  day  of  September  of  each  and  every  year,  of  such  re- 
ceipts for  such  water  rent  and  taxes  of  the  current  year  upon 
the  premises  mortgaged,  or  if  the  said  mortgagor  should  not 
well  and  truly  pay,  or  cause  to  be  paid,  the  interest  upon  the 
first  mortgage,  and  the  ground  rent,  if  such  there  be,  the  water 
rent  and  other  municipal  claims  and  taxes,  on  the  hereinafter 
described  premises,  when  the  same  should  become  due  and  pay- 
able, and  also  should  not  well  and  truly  pay,  or  cause  to  be  paid, 
all  and  every  such  sum  or  sums  as  should  thereafter  be  assessed 
by  any  public  authority  upon  the  said  principal  debt  or  sum,  or 
upon  the  interest  thereof,  then  and  in  such  case  the  whole  prin- 
cipal debt  aforesaid  should,  at  the  option  of  the  said  mortgagee, 
its  successors  and  assigns,  immediately  thereupon  become  due, 
payable  and  recoverable,  and  payment  of  said  principal  sum,  and 
all  interest,  and  all  fines  thereon,  as  well  as  any  contribution  on 
said  three  (3)  shares  of  stock  then  due,  may  be  enforced  and 
recovered  at  once,  any  thing  thereinbefore  contained  to  the  con- 
trary thereof  notwithstanding.  And  it  was  therein  further 
agreed,  that  if  the  same  or  any  part  thereof  has  to  be  collected  by 
proceedings  at  law,  then  an  attorney's  collection  fee  of  five  per 
cent,  should  be  added  to  the  amount  so  collected  as  a  part  of  the 
costs  of  such  proceedings.  And  the  said  mortgagor  for  himself, 
his  heirs,  executors,  administrators  and  assigns,  thereby  ex- 
pressly waived  and   relinquished  unto  the  said  mortgagee,   its 


Mortgages.  123 

successors  and  assigns,  all  benefit  that  might  accrue  to  him  or 
them  by  virtue  of  any  and  every  law  made  or  to  be  made 
exempting  the  premises  hereinafter  described,  or  of  any  other 
premises  or  property  whatever,  from  levy  and  sale  under  execu- 
tion, or  any  part  of  the  proceeds  arising  from  the  sale  thereof, 
from  the  payment  of  the  moneys  thereby  secured,  or  any  part 
thereof,  and  the  cost  of  such  action  and  execution,  as  in  and  by 
the  said  above  recited  obligation  and  the  condition  thereof,  rela- 
tion being  thereunto  had  may  more  fully  and  at  large  appear. 

Now  this  Indenture  witnesseth,  That  the  said  mortgagor 
as  well  for  and  in  consideration  of  the  premises,  as  of  the  afore- 
said debt  or  principal  sum  of  six  hundred  ($600.00)  dollars, 
and  for  the  better  securing  the  payment  of  the  same,  with  in- 
terest, together  with  all  fines,  and  together  with  the  monthly 
contribution  of  three  ($3.00)  dollars,  on  the  said  three  (3) 
shares  of  stock  owned  by  the  said  John  Smith,  mortgagor,  unto 
the  said  mortgagee,  its  successors  and  assigns,  in  discharge  of  the 
said  above  recited  obligation  as  of  the  further  sum  of  one  dollar, 
lawful  money,  unto  him  in  hand  well  and  truly  paid  by  the  said 
mortgagee,  at  the  time  of  the  execution  hereof,  the  receipt 
whereof  is  hereby  acknowledged,  hath  granted,  bargained,  sold, 
aliened,  enfeoffed,  released  and  confirmed,  and  by  these  presents 
doth  grant,  bargain,  sell,  alien,  enfeoff,  release  and  confirm  unto 
the  said  mortgagee,  its  successors  and  assigns,  all  that  certain 
lot  or  piece  of  ground  with  messuage  or  tenement  thereon 
erected,  situate  on  the  west  side  of  "Y"  Street,  at  a  distance  of 
three  hundred  and  thirty-seven  (33/)  feet  northzvard  from  the 
north  side  of  "X"  Street,  in  the  Fiftieth  Ward  of  the  City  of 
Philadelphia,  containing  in  front  or  breadth  on  the  said  "Y" 
Street,  eighteen  (18')  and  extending  of  that  width  in  length  or 
depth  westward  between  two  parallel  lines  at  right  angles  with 
the  said  "Y"  Street  one  hundred  feet  to  a  certain  three  feet  wide 
alley,  extending  northzvard  from  "X"  Street  to  "Z"  Street. 
Being  the  same  premises  which  Andrezv  Brown  and  Wife,  by 
Indenture  bearing  date  the  fifth  day  of  July,  A.  D.  1011,  and 
recorded  in  the  Office  for  the  Recording  of  Deeds  in  and  for 
the  County  of  Philadelphia,  in  Deed  Book  W.  S.  V .,  No.  1196, 
Page  213,  etc.,  granted  and  conveyed  unto  the  said  John  Smith 
in  fee. 

(And  It  Is  Hereby  expressly  certified  and  declared  that  this  is 
not  a  purchase  money  mortgage  and  that  it  is  subject  both  in  lien 
and  payment  to  a  certain  Mortgage  to  secure  the  payment  of 
Thirty-five  Hundred  ($3300.00)  Dollars  given  by  the  said  Mort- 
gagor to  Richard  Black  dated  the  second  day  of  January,  A.  D. 
1012  and  intended  to  be  recorded;  and  that  the  lien  of  the  said 
Mortgage  shall  not  be  affected  or  impaired  by  a  judicial  sale  under 
a  judgment  recovered  upon  this  present  Indenture  or  upon  the 
Bond  secured  hereby;  but  any  such  sale  shall  be  expressly  adver- 
tised and  made  subject  to  the  lien  of  the  said  Mortgage.) 


124  Conveyancing  in   Pennsylvania. 

Together  with  the  free  and  common  use,  right,  liberty  and  privi- 
lege of  the  aforesaid  alley,  as  and  for  a  passage  way  and  water 
course  at  all  times,  hereafter,  forever.    And, 

Together  with  all  and  singular  the  Buildings,  Streets,  Alleys. 
Passages,  Ways,  Waters,  Water-Courses,  Rights,  Liberties,  Privi- 
leges, Improvements,  Hereditaments  and  Appurtenances  whatso- 
ever thereunto  belonging,  or  in  any  wise  appertaining,  and  the 
Reversions  and  Remainders,  Rents,  Issues  and  Profits  thereof. 

To  have  and  to  hold  the  said  lot  or  piece  of  ground  with  the 
Messuage  or  Tenement  thereon  erected,  Hereditaments  and 
Premises  hereby  granted,  or  mentioned  and  intended  so  to  be, 
with  the  Appurtenances,  unto  the  said  Mortgagee,  its  Successors 
and  Assigns,  to  and  for  the  only  proper  use  and  behoof  of  the 
said  Mortgagee,  its  Successors  and  Assigns,  forever.  Under  and 
Subject  both  in  lien  and  payment  to  a  certain  Mortgage  to  secure 
the  payment  of  $3500.00  given  by  the  Mortgagor  to  Richard 
Black,  dated  the  2nd  day  of  January,  1012  as  above  fully  set 
forth. 

Provided  always,  nevertheless,  that  if  the  said  Mortgagor  his 
Heirs,  Executors,  Administrators  or  Assigns,  do  and  shall  well 
and  truly  pay,  or  cause  to  be  paid,  unto  the  said  Mortgagee,  its 
Successors  or  Assigns,  the  aforesaid  debt  or  principal  sum  of 
Six  hundred  ($600.00)  Dollars,  together  with  interest  thereon, 
and  together  with  the  fines  aforesaid,  on  the  days  and  times  here- 
inbefore mentioned  and  appointed  for  payment  of  the  same ;  and 
shall  also  well  and  truly  pay,  or  cause  to  be  paid,  to  the  said 
Mortgagee,  its  Successors  or  Assigns,  the  above  mentioned  sum 
of  Three  ($3.00)  Dollars,  on  the  second  Monday  of  every  month, 
as  and  for  the  contribution  on  the  said  Three  (3)  Shares  of 
Stock  as  above  mentioned ;  and  shall,  on  or  before  the  First  day 
of  September  of  each  and  every  year,  deliver  to  the  said  Mort- 
gagee, its  Successors  or  Assigns,  receipts  for  all  water  rent  and 
taxes  of  the  current  year  assessed  upon  the  mortgaged  premises, 
and  shall  keep  and  maintain  said  fire  insurance  so  assigned  as 
aforesaid,  according  to  the  condition  of  the  said  above  recited 
Obligation  without  any  fraud  or  further  delay,  and  without  any 
deduction,  defalcation  or  abatement  to  be  made  of  any  thing,  for 
or  in  respect  of  any  taxes,  charges  or  assessments  whatsoever, 
that  then,  and  from  thenceforth,  as  well  this  present  Indenture, 
and  the  Estate  hereby  granted,  as  the  said  above  recited  Obliga- 
tion shall  cease,  determine  and  become  void,  any  thing  hereinbe- 
fore contained  to  the  contrary  thereof,  in  any  wise  notwithstand- 
ing. Provided  further,  in  case  of  default  in  the  payment  of  the 
principal,  interest  or  fines  as  aforesaid,  or  any  part  thereof,  or  in 
default  of  the  payment  of  the  monthly  contribution  on  the  said 
Three  (3)  Shares  of  Stock,  as  above  particularly  recited  and 
mentioned,  or  any  part  thereof,  for  the  space  of  six  months  after 
any  payment  thereof  shall  fall  due,  or  in  the  promp't  and  punctual 
maintenance  of  said  fire  insurance  so  assigned  as  aforesaid,  or  in 


Mortgages.  125 

such  delivery  to  the  said  Mortgagee,  its  Successors  or  Assigns, 
on  or  before  the  First  day  of  September  of  each  and  every  year, 
of  such  receipts  for  such  water  rent  and  taxes  of  the  current  year 
assessed  upon  the  mortgaged  premises,  or  if  the  said  Mortgagor 
shall  not  well  and  truly  pay,  or  cause  to  be  paid,  the  interest  upon 
the  first  mortgage,  and  the  ground  rent,  if  such  there  be,  the 
water  rent  and  other  municipal  claims  and  taxes,  on  the  above 
described  premises,  when  the  same  shall  become  due  and  payable, 
and  also  shall  not  well  and  truly  pay,  or  cause  to  be  paid,  all  and 
every  such  sum  or  sums  as  shall  hereafter  be  assessed  by  any 
public  authority  upon  the  said  principal  debt  or  sum,  or  upon  the 
interest  thereof,  then  and  in  such  case  the  whole  principal  debt 
aforesaid  shall  immediately  thereupon  become  due,  payable  and 
recoverable;  and  it  shall  and  may  be  lawful  for  the  said  Mort- 
gagee, its  Successors  or  Assigns,  to  sue  out  forthwith  a  writ  of 
Scire  Facias  upon  this  present  Indenture  of  Mortgage,  and  to 
proceed  at  once  thereon  to  recover  the  principal  money  hereby 
secured,  and  all  interest,  and  all  fines  thereon,  as  well  as  any  con- 
tribution on  said  Three  (3)  Shares  of  Stock  then  due,  according 
to  law,  without  further  stay,  any  law  or  usage  to  the  contrary 
notwithstanding.  And  it  is  hereby  agreed,  that  in  case  the  same 
or  any  part  thereof  has  to  be  collected  by  process  of  law,  that  an 
attorney's  fee  of  Five  per  cent,  shall  be  added  to  and  collected  as 
a  part  of  the  costs  of  such  proceedings.  And  the  said  Mortgagor 
for  himself,  his  Heirs,  Executors,  Administrators  and  Assigns, 
hereby  waive  and  relinquish  unto  the  said  Mortgagee,  its  Suc- 
cessors and  Assigns,  all  benefit  that  may  accrue  to  him  or  them 
by  virtue  of  any  and  every  law  made  or  to  be  made  to  exempt 
the  said  above  described  premises  or  any  other  property  whatever 
either  from  levy  and  sale  under  execution,  or  any  part  of  the  pro- 
ceeds arising  from  the  sale  thereof,  from  the  payment  of  the 
moneys  hereby  secured,  or  any  part  thereof. 

In  Witness  Whereof,  the  said  parties  to  these  presents  have 
hereunto  interchangeably  set  their  hands  and  seals.  Dated  the 
day  and  year  first  above  written. 

Sealed  and  delivered  in  the 

presence  of  us : 

Robert  Roe, 

j  h     r)  John  Smith.         (Seal.) 

On  the  3rd  day  of  January  A.  D.  1912,  before  me,  a  Notary 
Public  for  the  Commomvealth  of  Pennsylvania,  residing  in  the 
City  of  Philadelphia  personally  appeared  the  above  named  John 
Smith  and  in  due  form  of  law  acknowledged  the  above  or  afore- 
going Indenture  of  Mortgage  to  his  act  and  deed,  and  desired 
the  same  might  be  recorded  as  such. 


126  Conveyancing  in   Pennsylvania. 

Witness  my  hand  and  Notarial  seal  the  day  and  year  afore- 
said. 

Robert  Roe, 
Notary  Public. 
Commission  expires  at  the  end  of  next  session  of  Senate. 

Form  of  Building  Association  Bond  and  Warrant. 

Know  all  Men  by  these  Presents,  That  /.  John  Smith,  of 
the  City  of  Philadelphia,  State  of  Pennsylvania,  Gentleman, 
(hereinafter  called  the  Obligor),  am  held  and  firmly  bound  unto 
The  XYZ  Building  and  Loan  Association  (hereinafter  called  the 
Obligee),  in  the  sum  of  Twelve  hundred  ($1200.00)  Dollars, 
lawful  money  of  the  United  States  of  America,  to  be  paid  to  the 
said  Obligee,  its  certain  Attorney,  Successors  or  Assigns :  To 
which  payment,  well  and  truly  to  be  made,  /  do  bind  myself,  my 
Heirs,  Executors  and  Administrators,  and  every  of  them,  firmly 
by  these  Presents.  Sealed  with  my  Seal.  Dated  the  3rd  day  of 
January  in  the  year  of  our  Lord  one  thousand  nine  hundred  and 
twelve  (1Q12). 

The  Condition  of  this  Obligation  is  such,  That  if  the 
above-bounden  Obligor  his  Heirs,  Executors  and  Administrators, 
or  any  of  them,  shall  and  do  well  and  truly  keep  and  maintain  at 
all  times,  until  the  full  discharge  of  this  Obligation,  a  policy  or 
policies  of  Fire  insurance  in  good  and  approved  company  or  com- 
panies, duly  assigned  as  collateral  security  to  the  Obligee  or  its 
Successors  or  Assigns,  to  an  amount  not  less  than  Six  Hundred 
($600.00)  Dollars,  upon  the  buildings  on  the  premises  mortgaged 
by  the  Mortgage  securing  this  Obligation,  and  shall  and  do  well 
and  truly  pay,  or  cause  to  be  paid  unto  the  above-named  Obligee, 
its  certain  Attorney,  Successors  or  Assigns,  the  just  sum  of  Six 
Hundred  ($600.00)  Dollars,  as  aforesaid,  at  any  time  within 
One  year  from  the  date  hereof,  together  with  interest  thereon, 
for  the  same,  in  like  money,  at  the  rate  of  six  (6)  per  cent, 
per  annum,  and  together  with  all  fines  imposed  by  the  Constitu- 
tion and  By-laws  of  the  aforesaid  Association,  payable  monthly 
on  the  second  Monday  of  each  and  every  month  hereafter,  and 
shall  also  well  and  truly  pay,  or  cause  to  be  paid  unto  the  said 
Obligee,  its  Successors  or  Assigns,  the  sum  of  Three  ($3.00) 
Dollars,  and  the  said  second  Monday  of  each  and  every  month 
hereafter,  as  and  for  the  monthly  contribution  on  Three  (3) 
Shares  of  the  Capital  Stock  of  the  said  Obligee,  now  owned  by 
the  said  Obligor,  without  any  fraud  or  further  delay;  and  shall 
also  deliver  to  the  said  Obligee,  its  Successors  or  Assigns,  on  or 
before  the  First  day  of  September  of  each  and  every  year,  re- 
ceipts for  all  water  rent  and  taxes  of  the  current  year  assessed 
upon  the  premises  described  in  the  accompanying  Indenture  of 
Nlortgage.  Provided,  however,  and  it  is  hereby  expressly  agreed, 
that  if  at  any  time  default  shall  be  made  in  the  payment  of  the 


Mortgages.  127 

said  principal  money  when  due,  or  of  the  said  interest,  or  of  the 
said  fines,  or  the  monthly  contribution  on  said  Stock,  for  the 
space  of  six  months  after  any  payment  thereof  shall  fall  due,  or 
in  the  prompt  and  punctual  maintenance  of  said  fire  insurance  so 
assigned  as  aforesaid,  or  in  such  delivery  to  the  said  Obligee,  its 
Successors  or  Assigns,  on  or  before  the  First  day  of  September 
of  each  and  every  year,  of  such  receipts  for  such  water  rent  and 
taxes  of  the  current  year  upon  the  premises  mortgaged;  or  if  the 
said  Obligor  shall  not  well  and  truly  pay,  or  cause  to  be  paid,  the 
interest  upon  the  first  mortgage  and  the  ground  rent,  if  such 
there  be,  the  water  rent  and  other  municipal  claims  and  taxes,  on 
the  premises  particularly  described  in  the  Mortgage  accompany- 
ing this  Obligation,  when  the  same  shall  become  due  and  payable, 
and  also  shall  not  well  and  truly  pay,  or  cause  to  be  paid,  all  and 
every  such  sum  or  sums  as  shall  hereafter  be  assessed  by  any 
public  authority  upon  the  said  principal  debt  or  sum,  or  upon  the 
interest  thereof,  then  and  in  such  case  the  whole  principal  debt 
aforesaid  shall,  at  the  option  of  the  said  Obligee,  its  Successors 
and  Assigns,  immediately  thereupon  become  due,  payable  and  re- 
coverable, and  payment  of  said  principal  sum,  and  all  interest, 
and  all  fines  thereon,  as  well  as  any  contribution  on  said  Three 
(3)  Shares  of  Stock,  then  due,  may  be  enforced  and  recovered  at 
once,  any  thing  hereinbefore  contained  to  the  contrary  thereof 
notwithstanding.  And  it  is  hereby  further  agreed,  that  if  the 
same,  or  any  part  thereof,  has  to  be  collected  by  process  at  law, 
that  an  attorney's  fee  of  Eive  per  cent,  shall  be  added  to  and 
collected  as  a  part  of  the  costs  of  such  proceedings.  And  the  said 
Obligor  for  himself,  his  Heirs,  Executors,  Administrators  and 
Assigns,  hereby  expressly  waives  and  relinquishes  unto  the  said 
Obligee,  its  Successors  and  Assigns,  all  benefit  that  may  accrue 
to  him  or  them  by  virtue  of  any  and  every  law,  made  or  to  be 
made,  to  exempt  the  premises  described  in  the  Indenture  of 
Mortgage  herewith  given,  or  of  any  other  premises  or  property 
whatever,  either  from  levy  and  the  sale  under  execution,  or  any 
part  of  the  proceeds  arising  from  the  sale  thereof,  from  the  pay- 
ment of  the  moneys  hereby  secured,  or  any  part  thereof,  and  the 
cost  of  such  action  and  execution,  then  the  above  Obligation  to 
be  void,  or  else  to  be  and  remain  in  full  force  and  virtue. 

Sealed  and  delivered  in  the 
presence  of  us : 

Robert  Roe,  John  Smith  ( Seal } 

John  Doe. 

To  Allen  Jones,  Esq.,  Attorney  of  the  Court  of  Common 
Pleas,  at  Philadelphia  in  the  County  of  Philadelphia  in  the  State 
of  Pennsylvania  or  to  any  other  Attorney,  or  to  the  Prothonotary 
of  the  said  Court,  or  of  any  other  Court,  there  or  elsewhere. 


128  Conveyancing  in   Pennsylvania. 

Whereas,  /,  John  Smith  of  the  City  of  Philadelphia,  State  of 
Pennsylvania,  (hereinafter  called  the  Obligor),  in  and  by  a  cer- 
tain Obligation,  bearing  even  date  herewith,  do  stand  bound  unto 
The  XYZ  Building  and  Loan  Association,  hereinafter  called  the 
Obligee),  in  the  sum  of  Twelve  Hundred  ($1200)  Dollars, 
lawful  money  of  the  United  States  of  America,  conditioned  to 
keep  and  maintain  at  all  times,  until  the  full  discharge  of  this 
Obligation,  a  policy  or  policies  of  Fire  insurance  in  good  and  ap- 
proved company  or  companies,  duly  assigned  as  collateral  to  the 
Obligee  or  its  Successors  or  Assigns,  to  an  amount  not  less  than 
Six  hundred  ($600.00)  Dollars,  upon  the  buildings  on  the  premi- 
ses mortgaged  by  the  Mortgage  securing  this  Obligation,  and  con- 
ditioned for  the  payment  of  the  just  sum  of  Six  hundred 
($600.00)  Dollars,  as  aforesaid,  at-  any  time  within  One  year 
from  the  date  thereof,  together  with  interest  thereon,  for  the 
same,  in  like  money,  at  the  rate  of  six  (6)  per  cent,  per  annum, 
and  together  with  all  fines  imposed  by  the  Constitution  and  By- 
Laws  of  the  aforesaid  Association,  payable  monthly,  on  the 
second  Monday  of  each  and  every  month  thereafter,  and  should 
also  well  and  truly  pay,  or  cause  to  be  paid  unto  the  said  Obligee, 
its  Successors  or  Assigns,  the  sum  of  Three  ($3.00)  Dollars,  on 
the  said  second  Monday  of  each  and  every  month  thereafter,  as 
and  for  the  monthly  contribution  on  Three  (3)  Shares  of  the 
Capital  Stock  of  the  said  Obligee,  now  owned  by  the  said  Obligor 
without  any  fraud  or  further  delay;  and  should  also  well  and 
truly  pay,  or  cause  to  be  paid,  all  and  every  such  sum  or  sums  as 
should  thereafter  be  assessed  by  any  public  authority  upon  the 
said  principal  debt  or  sum,  or  upon  the  interest  thereof;  and 
should  also  deliver  to  the  said  Obligee,  its  Successors  or  Assigns, 
on  or  before  the  First  day  of  September  of  each  and  every  year, 
receipts  for  all  water  rent  and  taxes  of  the  current  year  assessed 
upon  the  premises  described  in  the  Mortgage  accompanying  said 
Obligation.  Provided,  however,  and  it  is  thereby  expressly 
agreed,  that  if  at  any  time  default  should  be  made  in  the  payment 
of  the  said  principal  money  when  due,  or  of  the  said  interest,  or 
of  the  said  fines,  or  the  monthly  contribution  on  said  Stock  for 
the  space  of  six  months  after  any  payment  thereof  should  fall 
due,  or  in  the  keeping  and  maintaining  at  all  times  fire  insurance 
so  assigned  as  aforesaid,  or  in  the  delivery  to  the  said  Obligee, 
its  Successors  or  Assigns,  on  or  before  the  First  day  of  Septem- 
ber of  each  and  every  year,  of  such  receipts  for  such  water  rent 
and  taxes  of  the  current  year  assessed  upon  the  mortgaged  premi- 
ses, or  if  the  said  Obligor  shall  not  well  and  truly  pay,  or  cause 
to  be  paid,  the  interest  upon  the  first  mortgage  and  the  ground 
rent,  if  such  there  be,  the  water  rent  and  other  municipal  claims 
and  taxes,  on  the  premises  particularly  described  in  the  Mortgage 
accompanying  this  Obligation,  when  the  same  shall  become  due 
and  payable,  and  also  shall  not  well  and  truly  pay,  or  cause  to 
be  paid,  all  and  every  such  sum  or  sums  as  should  thereafter  be 


Mortgages.  129 

assessed  by  any  public  authority  upon  the  said  principal  debt  or 
sum,  or  upon  the  interest  thereof,  then  and  in  such  case  the 
whole  principal  debt  aforesaid  should,  at  the  option  of  the  said 
Obligee,  its  Successors  and  Assigns,  immediately  thereupon  be- 
come due,  payable  and  recoverable,  and  payment  of  said  princi- 
pal sum,  and  all  interest,  and  all  fines  thereon,  as  well  as  any 
contribution  on  said  Three  (3)  Shares  of  Stock,  then  due,  might 
be  enforced  and  recovered  at  once,  any  thing  thereinbefore  con- 
tained to  the  contrary  thereof  notwithstanding.  And  it  is  thereby 
further  agreed,  that  if  the  same,  or  any  part  thereof,  has  to  be 
collected  by  process  of  law,  then  an  attorney's  fee  of  Five  per 
cent,  should  be  added  to  the  amount  so  collected,  as  a  part  of  the 
costs  of  such  proceedings.  And  the  said  Obligor  for  himself, 
his  Heirs,  Executors,  Administrators  and  Assigns,  thereby  ex- 
pressly waived  and  relinquished  unto  the  said  Obligee,  its  Suc- 
cessors and  Assigns,  all  benefit  that  might  accrue  to  him  or  them 
by  virtue  of  any  and  every  law,  made  or  to  be  made,  to  exempt 
the  premises  described  in  the  Indenture  of  Mortgage  therewith 
given,  or  of  any  other  premises  or  property  whatever,  either  from 
levy  and  sale  under  execution,  or  any  part  of  the  proceeds  aris- 
ing from  the  sale  thereof,  from  the  payment  of  the  moneys 
thereby  secured,  or  any  part  thereof: — These  are  to  desire  and 
authorize  you,  or  any  of  you,  to  appear  for  me,  my  Heirs,  Execu- 
tors or  Administrators,  in  the  said  Court  or  elsewhere,  in  an  ap- 
propriate form  of  action,  there  or  elsewhere  brought  or  to  be 
brought  against  me,  my  Heirs,  Executors  or  Administrators,  at 
the  suit  of  the  said  Obligee,  its  Successors  or  Assigns,  on  the  said 
Obligation,  as  of  any  Term  or  Time  past,  present,  or  any  other 
subsequent  Term  or  Time  there  or  elsewhere  to  be  held,  and  con- 
fess or  enter  Judgment  thereupon  against  me,  my  Heirs,  Execu- 
tors or  Administrators,  for  the  sum  of  Twelve  hundred 
($1200.00)  Dollars,  lawful  money  of  the  United  States  of 
America,  Debt,  besides  costs  of  suit,  by  non  sum  informatus 
nihil  dicit,  or  otherwise,  as  to  you  shall  seem  meet ;  and  for  your 
or  any  of  your  so  doing  this  shall  be  your  sufficient  warrant. 
And  I  do  hereby,  for  myself,  my  Heirs,  Executors  and  Adminis- 
trators, remise,  release  and  forever  quit  claim  unto  the  said 
Obligee,  its  certain  Attorney,  Successors  and  Assigns,  all  and  all 
manner  of  Error  and  Errors,  Misprisions,  Misentries,  Defects 
and  Imperfections  whatever,  in  the  entering  of  the  said  Judg- 
ment, or  any  Process  or  Proceedings  thereon  or  thereto,  or  any- 
wise touching  or  concerning  the  same. 

In  Witness  Whereof,  /  have  hereunto  set  my  hand  and  seal  the 
3rd  day  of  January  in  the  year  of  our  Lord  one  thousand  nine 
hundred  and  twelve  (1012). 

Sealed  and  delivered  in  the 

presence  of  us : 

Robert  Roe, 

T  ,      ~  John  Smith.         (Seal.) 

John  Doe.  J 


130  Conveyancing  in   Pennsylvania. 

95.     Leasehold  Mortgages. 

We  have  seen  that  in  general  any  freehold  estate  (see  Par.  3), 
of  land  may  be  mortgaged ;  so  also  may  a  leasehold  interest  be 
mortgaged.  This  is  an  important  advantage  where  the  lease  is 
for  a  long  term  of  years.  Under  Act  of  April  27th,  1855,  P.  L. 
368,  Sec.  8,  every  lessee  for  a  term  of  years  may  mortgage  his 
lease  with  all  buildings,  fixtures  and  machinery  thereon  with  the 
same  effect  as  in  case  of  freehold  interest.  But  the  mortgage 
must  be  acknowledged  and  recorded  with  the  lease  or  a  copy 
thereof  (Ladley  v.  Creighton,  70  Pa.  490).  (See  form  par.  262.) 
Such  mortgage,  however,  does  not  affect  the  landlord's  rights, 
priority  or  remedy  for  rent.  As  the  right  to  mortgage  leaseholds 
is  a  statutory  right  it  is  strictly  construed,  so  that  where  a  lease 
and  a  mortgage  of  said  lease  are  duly  recorded  and  both  expire 
on  a  date  named  and  the  lease  is  extended  after  the  expiration  of 
the  original  term  but  the  extension  of  lease  is  not  recorded,  the 
lien  of  the  mortgage  is  not  extended  but  is  lost  on  the  date  when 
the  lease  had  expired,  and  this  applies  not  only  to  the  lien  on  the 
lease,  but  as  to  the  lien  on  the  fixtures  and  machinery  belonging 
to  the  lessee  which  are  considered  appurtenant  to  the  lease 
Stock  v.  German  Press  Co.,  230  Pa.  127). 

96.     Recording  of  Mortgages. 

The  Pennsylvania  recording  system  and  laws  will  be  consid- 
ered in  a  separate  chapter  hereinafter  (Chapter  VIII,  Page  158) 
but  it  is  necessary  to  remember  that  unlike  a  deed  the  mortgage 
takes  priority  from  the  time  it  is  recorded  and  not  from  its  date. 
That  is,  the  mortgage  first  recorded  is  first  lien  notwithstanding 
a  prior  mortgage  has  been  executed  before  but  not  recorded  until 
thereafter.  The  only  exception  to  this  rule  is  the  purchase  money 
mortgage  which  takes  effect  from  the  date  of  the  mortgage  if 
recorded  at  any  time  within  sixty  days  thereof.  But  Mr.  Fallon 
(Pa.  Law  Conveyancing  by  Christopher  Fallon,  Esq.,  Page  402), 
doubted  whether  in  Philadelphia  county  by  reason  of  the  Act  of 
May  25th,  1878,  P.  L.  151,  even  purchase  money  mortgages  are 
not  required  to  be  recorded  at  once  like  any  other  mortgage.  To 
be  safe  therefore  the  immediate  recording  of  all  mortgages  is 
recommended.  The  neglect  to  record  however  does  not  defeat 
the  mortgage  as  to  the  mortgagor  but  merely  suspends  its  lien  as 
to  any  bona  fide  mortgagee  or  purchaser  of  the  property  without 
notice  of  its  existence.    A  mortgage  unrecorded  in  the  lifetime  of 


Mortgages.  131 

the  mortgagor  gains  no  lien  by  being  recorded  afterwards.  It 
ranks  merely  as  a  debt  under  seal  of  the  decedent  (Nice  Appeal, 
54  Pa.  200) . 

SECTION  IV. 

DISCHARGE  OE   MORTGAGES. 
97.     By  Payment  and  Satisfaction  of  Record. 

A  mortgage  paid  and  satisfied  of  record  is  of  course  discharged. 
The  recorder  of  deeds  will  not  satisfy  the  record  of  a  mortgage 
unless  the  original  instrument  is  produced.  Should  the  original 
mortgage  be  lost,  mislaid  or  destroyed,  appropriate  proceedings 
are  provided  by  the  Act  of  June  8,  191 1,  P.  L.  717,  whereby  on 
petition  to  the  court,  &c,  satisfaction  will  be  ordered  or  whatever 
relief  is  necessary,  granted. 

Payment  may  be  either  actwal  or  presumed.  A  mortgage  is 
presumed  paid  off  if  no  payment  has  been  made  either  on  ac- 
count of  principal  or  interest  for  twenty  years,  but  it  remains  a 
lien  unless  satisfied  by  court  proceedings  as  explained  in  para- 
graph 98  of  this  section. 

Actual  payment  of  mortgage  principal  cannot  be  made  by  the 
mortgagor,  except  in  building  association  mortgages  until  due. 
But  the  mortgagee  may  waive  his  right  to  refuse  to  receive  it 
until  due.  So  also  the  mortgagee  cannot  require  payment  until 
due.  When  payment  of  principal  is  due,  depends  upon  the  word- 
ing of  the  mortgage.  A  mortgage  payable  within  a  certain  time 
may  be  paid  off  at  any  time ;  so  a  mortgage  payable  within  a  year 
from  date  can  be  paid  off  at  any  time  during  the  year  ( Patterson 
v.  Judge,  17  W.  N.  C.  127;  Horstman  v.  Gerker,  49  Pa.  282). 
Therefore  in  filling  in  the  printed  form  of  mortgages  insert  the 

words  "payable  at  the  expiration  of years  from  the  date 

thereof."  Payment  to  discharge  a  mortgage  should  be  made  to 
the  mortgagee  and  such  payment  to  him  will  discharge  the  mort- 
gage even  though  assigned  by  him  unless  the  assignee  shall  have 
given  notice  of  the  assignment  to  the  mortgagor.  Mere  record- 
ing of  the  assignment  is  not  sufficient  notice  (Foster  v.  Carson, 
159  Pa.  477).  Where  a  dispute  arises  as  to  who  the  proper 
party  is,  entitled  to  receive  the  principal  of  the  mortgage,  the 
mortgagor  may  protect  himself  by  petitioning  the  court  for  leave 
to  pay  the  principal  into  court.  The  court  will  then  decide  the 
question  of  the  rights  of  the  disputants  and  award  the  money 
so  paid  into  court  to  the  one  legally  entitled. 


132  Conveyancing  in   Pennsylvania. 

98.  By  Order  of  Court  in  Proceedings  to   Satisfy   Mortgage  Pre- 

sumed Paid. 

Wherever  a  mortgage  has  been  paid  and  the  holder  thereof 
had  died  (Acts  of  March  31,  1823,  8  Sm.  L.  131,  Sec.  1),  or  has 
not  satisfied  it  proceedings  in  court  may  be  taken  to  compel  sat- 
isfaction (Act  of  June  22,  1897,  P.  L.  181). 

By  Act  of  June  10,  1881,  P.  L.  97,  Sec.  1,  proceedings  are 
provided  wherein  a  mortgage  may  be  satisfied  by  the  court  where 
no  payment  on  the  principal  or  interest  has  been  made  for  twenty 
years.  Such  a  lapse  of  time  raises  a  presumption  of  payment  of 
the  mortgage  and  the  court  is  empowered  upon  petition  duly 
filed  to  make  an  order  to  satisfy  such  mortgage  of  record. 

Where  a  mortgage  has  been  paid  but  never  satisfied,  the  Act  of 
June  11,  1879,  P.  L.  141,  Sec.  1,  provides  for  proceedings  whereby 
satisfaction  may  be  had  even  though  the  mortgagee  cannot  be 
found.  The  same  act  provides  a  like  remedy  where  the  mort- 
gagee was  a  corporation  whose  existence  has  been  terminated  or 
become  doubtful. 

99.  Discharge  of  Mortgage  by  Belease.    Form. 

Where  a  mortgage  covers  but  one  property  and  it  is  desired  to 
release  the  lien  against  that  property,  the  simplest  way  to  do  it  is 
of  course  by  satisfaction  of  the  record.  But  it  sometimes  hap- 
pens that  one  mortgage  is  drawn  to  cover  several  properties  and 
it  is  desired  by  the  parties  to  relieve  one  property  from  the  lien 
without  relieving  the  rest.  This  is  accomplished  by  an  instru- 
ment called  a  "Release  of  Mortgage."  A  release  of  mortgage  is 
an  instrument  in  writing  duly  executed  by  the  mortgagee  and 
acknowledged,  though  not  necessarily  under  seal,  agreeing  not  to 
collect  the  mortgage  debt  by  a  sale  of  the  portion  of  the  premises 
released  (Wentz  v.  DeHaven,  1  S.  &  R.  312).  The  release 
should  be  recorded  in  order  to  clear  the  title  of  the  released 
premises.    The  form  of  a  release  is  as  follows: — 

Release  of  Mortgage.* 

To  all  to  whom  these  Presents  shall  come,  Herman  T. 
Edzvards  sends  Greeting: 

♦This  is  the  regular  printed  form,  which  can  be  bought  at  any  law 
blank  stationer.  The  words  in  italics  are  to  be  filled  in  by  the  conveyancer. 
The  same  form  may  be  used  for  a  corporation,  except  that  words  "its 
successors"  should  be  substituted  for  the  words  "heirs,  executors,  admin- 
istrators." 


Mortgages.  133 

Whereas,  Frederick  II.  Lambert  by  Indenture  of  Mortgage 
bearing  date  the  Tenth  day  of  lanuary  Anno  Domini  1907,  and 
Recorded  in  the  Office  for  Recording  of  Deeds  in  and  for  the 
City  and  County  of  Philadelphia  in  Mortgage  Book  W.  S.  V . 
No.  1036  page  243,  &c,  granted  and  conveyed  unto  lacob  E. 
Richmond,  his  heirs,  executors,  administrators  and  Assigns,  the 
premises  therein  particularly  described,  to  secure  the  payment 
of  a  certain  debt  or  principal  sum  of  Five  thousand  ($5,000.00) 
Dollars  lawful  money,  etc.,  with  interest,  as  therein  mentioned. 

And  Whereas  the  said  Herman  T.  Edwards  is  the  present 
holder  of  said  Mortgage  by  Assignment  by  Jacob  E.  Richmond 
dated  March  3rd,  1908  and  recorded  in  Assignment  of  Mort- 
gage Book,  No.  314,  Page  300,  &c. 

And  Whereas,  the  said  Frederick  H.  Lambert  has  requested 
the  said  Herman  T.  Edivards  to  release  the  Premises  hereinafter 
described,  being  part  of  said  Mortgaged  Premises,  from  the  lien 
and  operation  of  the  said  Mortgage: 

Now  therefore  know  Ye,  that  /  the  said  Herman  T.  Ed- 
wards, as  well  in  consideration  of  the  premises  as  of  the  sum  of 
Twenty-five  Hundred  ($2500.00)  Dollars  lawful  money,  to  me  in 
hand  paid  by  the  said  Frederick  H.  Lambert  at  the  time  of  the 
execution  hereof,  the  receipt  whereof  is  hereby  acknowledged, 
Yixve  remised,  released,  quit-claimed,  exonerated  and  discharged, 
and  by  these  presents,  Do  remise,  release,  quit-claim,  exonerate 
and  discharge  unto  the  said  Frederick  H.  Lambert,  his  heirs, 
executors,  administrators  and  Assigns,  All  that  certain  lot  or 
piece  of  ground  with  the  Messuage  or  Tenement  thereon  erected, 
Situate  on  the  South  side  of  "C"  Street  at  a  distance  of  Sixty- 
five  Feet  North  from  the  North  side  of  "F"  Street  in  the  Fiftieth 
Ward  of  the  City  of  Philadelphia,  Containing  in  front  or  breadth 
on  said  "C"  Street,  Sixteen  feet  and  extending  of  that  width  in 
length  or  depth  Southward  between  lines  parallel  with  "F" 
Street  Eighty-five  feet  to  a  three  feet  wide  alley. 

To  hold  the  same,  with  the  Appurtenances  unto  the  said 
Frederick  H.  Lambert,  his  heirs,  executors,  administrators  and 
Assigns,  forever  freed,  exonerated  and  discharged  of  and  from 
the  lien  of  said  Mortgage,  and  every  part  thereof. 

Provided,  always,  nevertheless,  that  nothing  herein  contained 
shall  in  anywise  affect,  alter  or  diminish  the  lien  or  encumbrance 
of  the  aforesaid  Mortgage  on  the  remaining  part  of  said  Mort- 
gaged Premises,  or  the  remedies  at  law  for  recovering  thereout 
or  against  the  said  Frederick  H.  Lambert,  his  heirs,  executors, 
administrators  or  Assigns,  the  balance  of  the  principal  sum,  with 
interest,  secured  by  said  Mortgage. 

In  Witness  Whereof,  the  said  parties  to  these  presents  have 
hereunto  set  their  hands  and  seals  this  Twenty-third  day  of 
November,  A.  D.  1008. 


134  Conveyancing  in   Pennsylvania. 

Sealed  and  delivered  in  the  | 
presence  of  us:  I 

John  Doe,  \  Herman  T.  Edwards.  (Seal.) 

Richard  Roe.  ) 

On  the  Twenty -third  day  of  November  Anno  Domini  1908, 
before  me,  the  Subscriber,  a  Notary  Public  in  for  the  State  of 
Pennsylvania  residing  in  Philadelphia  personally  appeared  the 
above-named  Herman  T.  Edwards  and  in  due  form  of  law  ac- 
knowledged the  above  Release  of  Mortgage  to  be  his  act  and 
deed,  and  desired  the  same  might  be  recorded  as  such. 

Witness  my  hand  and  Notarial  seal  the  day  and  year  aforesaid. 

Richard  Roe,         (Seal.) 
Notary  Public. 

It  must  be  remembered  that  a  mortgagee  is  not  bound  to  re- 
lease any  part  of  the  mortgage  premises  without  the  payment  of 
the  entire  principal  (Home  Bldg.  Ass'n.  v.  Troth,  3  Del.  Co.  169). 
In  other  words,  if  a  mortgage  of  $1,000.00  covers  two  properties 
the  mortgagor  cannot  tender  $500.00  and  demand  the  release  of 
one  property.  The  giving  of  a  release  is  always  an  act  of  ac- 
commodation on  the  part  of  a  mortgagee  and  may  or  may  not  be 
for  a  consideration.  But  release  taken  from  a  trustee  should 
always  be  for  a  valuable  consideration  lest  the  trustee  be  exceed- 
ing his  trust  powers  in  giving  the  release  in  which  event  the  re- 
lease would  be  void  as  to  the  cestui  que  trust.  Sometimes  there 
is  given  what  is  called  a  blanket  mortgage  or  a  mortgage  which 
covers  a  large  tract  of  land  consisting  of  a  number  of  separate 
lots.  If  an  agreement  be  made  at  the  time  this  mortgage  is  made 
that  the  mortgagee  will  release  from  time  to  time  separate  lots 
from  the  lien  of  his  mortgage,  as  sold,  upon  the  receipt  of  the 
proportionate  share  of  his  mortgage  such  an  agreement  is  bind- 
ing and  the  mortgagor  can  compel  the  release  of  the  lien  of  the 
mortgage  from  the  lots  sold  upon  tender  of  the  proportionate 
share  of  the  mortgage.  But  unless  such  agreement  is  made  the 
mortgagor  cannot  compel  the  mortgagee  to  release  any  part 
witnout  tender  of  the  whole  mortgage  debt. 

There  is  one  other  matter  of  importance  to  remember  in  re- 
leasing a  portion  of  premises  from  lien  of  a  mortgage  and  that 
is  that  if  a  mortgagor  sells  a  portion  of  the  mortgaged  premises 
without  obtaining  a  release  and  thereafter  sells  another  portion 
sufficient  in  value  to  pay  off  the  whole  mortgage  for  which  he 
does  obtain  a  release  of  mortgage,  this  last  release  operates  to 
discharge  and  release  the  first  portion  sold  (Shrack  v.  Schriner, 


Mortgages.  135 

100  Pa.  451;  Meigs  v.  Tunnicliff,  214  Pa.  495).  This  because 
when  pieces  of  land  subject  to  a  common  encumbrance  are  sold 
successively  by  the  owner,  they  are  liable  to  incumbrance  in  the 
inverse  order  of  their  alienation  (Turner  v.  Flennikin,  164  Pa. 
469).  That  is  the  holder  of  the  encumbrance  must  first  collect 
his  debt  from  the  part  remaining  and  if  not  sufficient  he  may 
pursue  the  part  last  sold  then  that  prior  and  so  on  so  that  the 
portion  sold  first  must  be  collected  from  last. 

100.     Discharge  by  Judicial  Sale. 

The  final  method  of  discharge  by  a  mortgage  is  by  a  judicial 
sale  on  the  instrument  itself  or  on  some  lien  prior  thereto.  If 
the  property  be  sold  at  a  sheriff's  sale  on  the  mortgage  or  ac- 
companying bond  whether  for  interest  or  principal  it  will  dis- 
charge the  mortgage  (Stoners  Appeal,  20  W.  N.  C.  375).  That 
is  the  purchaser  at  the  sheriff  sale  gets  a  clear  title  and  the 
holder  of  the  mortgage  gets  the  amount  of  his  mortgage  debt 
with  interest  due  out  of  the  proceeds  of  the  sale.  It  is  not  the 
province  of  this  book  to  enter  into  a  full  discussion  of  the  dis- 
charge of  liens  by  judicial  sale  since  that  subject  requires  a 
treatise  in  itself,  but  a  few  general  rules  will  be  noted.  First, 
judicial  sales  are  generally  of  two  kinds,  those  arising  by  issuing 
a  writ  of  execution  upon  a  judgment  obtained  on  the  lien,  and  a 
sale  by  the  sheriff  which  class  may  therefore  be  termed  sheriff 
sales.  And  second,  those  taking  place  on  an  order  of  a  court  in 
proceedings  begun  to  sell  the  land  for  some  legal  purpose  (such 
as  an  Orphans'  Court  sale  to  pay  debts  or  partition  proceedings 
to  divide  land  owned  by  tenants  in  common),  which  may  be 
termed  sales  by  order  of  court. 

As  to  sheriff's  sales,  the  general  rule  is  that  a  sale  on  any  lien 
discharges  that  lien  and  all  subsequent  liens.  Thus  a  sale  on  a 
first  mortgage  of  the  premises  would  discharge  that  mortgage  as 
well  as  a  second  mortgage  and  any  other  lien  *.  g.  as  a  subse- 
quent judgment  lien  against  the  property.  When  a  mortgage 
lien  is  prior  to  all  other  liens  upon  the  same  property  except 
other  mortgages,  ground  rents,  purchase  money  due  the  common- 
wealth and  except  taxes,  municipal  claims  and  assessments  not 
at  the  date  of  said  mortgage  duly  entered  as  a  lien  in  the  office 
of  the  prothonotary  of  proper  county,  and  except  taxes,  munici- 
pal claims  and  assessments,  whose  lien,  though  afterwards  ac- 
cruing has  by  law  priority  given  it;  the  lien  of  such  mortgage 


136  Conveyancing  in   Pennsylvania. 

shall  not  be  dfscharged  or  destroyed  or  in  any  way  affected  by 
any  such  judicial  or  other  sale  whatsoever  except  as  hereinafter 
stated  whether  such  judicial  sale  shall  be  made  by  virtue  or  au- 
thority of  any  order  or  decree  of  any  Orphans'  or  other  court  or 
of  any  writ  of  execution  or  otherwise  howsoever  provided  that 
this  section  shall  not  apply  to  cases  of  mortgages  on  unseated 
lands  or  sales  of  the  same  for  taxes  (Act  of  May  8,  1901,  Sec.  I, 
P.  L.  141). 

This  act  simply  means  that  a  sheriff's  sale  on  any  subsequent 
lien  or  by  order  of  court  will  not  discharge  a  mortgage  if  that 
mortgage  is  first  lien  or  has  prior  to  it  other  mortgages,  ground 
rents,  municipal  liens  and  taxes.  Thus  if  there  should  be  before 
the  mortgage  in  question,  a  judgment  lien  even  though  sale  is 
made  on  execution  issued  on  a  judgment  lien  subsequent  to  the 
mortgage  in  question,  that  mortgage  and  everything  subsequent 
and  including  the  prior  judgment  lien  will  be  cleared  off  and  rele- 
gated to  the  fund.  The  rule  as  to  sales  by  the  order  of  court  is 
exactly  the  same  except  that  the  holder  of  a  mortgage  whose  only 
prior  liens  are  other  mortgages,  grounds,  taxes,  etc.,  may  waive 
his  immunity  and  agree  that  the  sale  shall  discharge  his  lien  as 
well  as  subsequents,  but  this  agreement  must  be  expressly  made 
(McFadden's  Assigned  Estate,  191  Pa.  624). 

SECTION  v. 
ASSIGNMENT  OF  MORTGAGES. 

101.     Definition.     Form. 

A  mortgage  like  any  other  chose  in  action  or  debt  may  be  as- 
signed by  the  mortgagee  at  his  pleasure  and  indeed  after  the  death 
of  the  mortgagee  by  his  executor  or  administrator.  This  is  done 
by  an  instrument  called  an  assignment  of  mortgage  which  in  form 
must  be  a  writing  under  seal,  acknowledged  and  recorded.  It 
must  have  two  witnesses.    The  usual  form  is  as  follows: — 

Assignment  of  Bond  and  Mortgage.* 

Know  all  Men  by  these  Presents,  That  /,  Richard  Black, 
of  the  City  of  Philadelphia,  State  of  Pennsylvania,  Merchant, 

♦This  is  a  regular  printed  form  of  assignment  of  mortgage,  which  may 
be  purchased  at  any  law  book  stationer.  The  words  in  italics  are  to  be 
filled  in  by  the  conveyancer. 


Mortgages. 


*37 


the  Mortgagee  named  in  the  Indenture  of  Mortgage  hereinafter 
mentioned,  for  and  in  consideration  of  the  sum  of  Thirty-five 
Hundred  ($3500.00)  Dollars  lawful  money,  unto  me  in  hand 
paid  by  Robert  Johnson,  Builder,  also  of  the  said  City  and  State 
at  the  time  of  the  execution  hereof,  the  receipt  whereof  is  hereby 
acknowledged,  do  hereby  grant,  bargain,  sell,  assigns,  transfer  and 
set  over  unto  the  said  Robert  Johnson,  his  heirs,  executors,  ad- 
ministrators and  assigns,  All  That  Certain  Indenture  of  Mort- 
gage given  and  executed  by  John  Smith  to  Richard  Black,  bear- 
ing date  the  second  day  of  January,  A.  D.  10 12  and  recorded  in 
the  Office  for  the  Recording  of  Deeds  in  and  for  the  County  of 
Philadelphia  in  Mortgage  Book,  W.  S.  V.  No.  1575,  page  321, 
&c,  on  All  that  Certain  lot  or  piece  of  ground  with  the 
Messuage  or  Tenement  thereon  erected,  Situate  on  the  West 
side  of  "Y"  Street  at  the  distance  of  Three  hundred  and  thirty- 
seven  feet  Northward  from  the  North  side  of  "X"  Street  in  the 
Fiftieth  Ward  of  the  City  of  Philadelphia.  Containing  in  front 
or  breadth  on  said  "Y"  Street  Eighteen  feet  and  extending  of 
that  width  in  length  or  depth  Westward  between  parallel  lines 
at  right  angles  to  the  said  "Y"  Street  One  hundred  feet  to  a  cer- 
tain Three  feet  wide  alley  extending  Nortward  from  "X" 
Street  to  "Z"  Street. 

Also  the  Bond  or  Obligation  in  the  said  Indenture  of  Mort- 
gage recited,  and  all  moneys  principal  and  interest  due  and  to 
become  due  thereon  with  the  Warrant  of  Attorney  to  the  said 
Obligation  annexed.  Together  with  all  Rights,  Remedies  and 
Incidents  thereunto  belonging.  And  all  my  Right,  Title,  Interest, 
Property,  Claim  and  Demand  in  and  to  the  same : 

To  have,  hold,  receive  and  take  all  and  singular  the  heredit- 
aments and  premises  hereby  granted  and  assigned,  or  mentioned 
and  intended  so  to  be,  with  the  appurtenances,  unto  the  said 
Robert  Johnson,  his  heirs,  executors,  administrators  and  assigns, 
to  and  for  his  and  their  only  proper  use,  benefit  and  behoof  for- 
ever; subject,  nevertheless,  to  the  equity  of  redemption  of  said 
John  Smith  Mortgagor  in  the  said  Indenture  of  Mortgage  named, 
and  his  heirs  and  assigns  therein. 

In  Witness  Whereof,  /  have  hereunto  set  my  hand  and  seal 
this  seventh  day  of  February  in  the  year  of  our  Lord  one  thou- 
sand nine  hundred  and  twelve  (1Q12). 

Sealed  and  delivered  in  the 
presence  of  us : 
Robert  Roe. 
John  Doe, 


> 


Richard  Black.         (Seal.) 


State  of  Pennsylvania, 
County  of  Philadelphia. 


ss. 


138  Conveyancing   in   Pennsylvania. 

On  the  seventh  day  of  February,  Anno  Domini  1912,  be- 
fore me,  the  subscriber,  a  Notary  Public  for  the  Commonwealth 
of  Pennsylvania,  residing  in  the  City  of  Philadelphia  personally 
appeared  the  above-named  Richard  Black  and  acknowledged  the 
above  Deed-Poll  of  Assignment  of  Mortgage  to  be  his  act  and 
deed,  and  desired  the  same  might  be  recorded  as  such. 

Witness  my  hand  and  Notarial  seal. 

Robert  Roe, 
Notary  Public. 

This  assignment  when  duly  executed  and  acknowledged  should 
be  recorded.  By  the  Act  of  April  6th,  1876,  P.  L.  18,  Sec.  1,  the 
recorder  of  deeds  is  required  to  note  the  assignment  upon  the 
margin  of  the  record  of  the  mortgage. 

102.  Effect  of  Assignment  and  Rights  of  Assignee. 

The  assignment  of  mortgage  carries  with  it  all  other  securi- 
ties which  the  mortgagee  has  for  the  same  debt.  As  soon  as  the 
assignment  is  made  the  assignee  should  immediately  notify  the 
mortgagor  that  the  mortgage  has  been  assigned  to  him,  and  that 
in  the  future  payments  should  be  made  to  him,  the  assignee. 
Unless  such  notice  is  given  a  payment  made  by  the  mortgagor 
after  the  assignment  to  the  original  mortgagee  will  be  binding 
against  the  assignee.  The  mortgagor  is  entitled  to  notice  and  he 
is  under  no  duty  to  watch  the  records.  The  assignment  of  a 
mortgage  is  governed  by  the  same  rules  of  law  governing  the  as- 
signment and  transfer  of  other  non-negotiable  instruments,  to  wit: 
That  the  assignee  stands  strictly  in  place  of  the  assignor  and  is 
entitled  to  all  the  rights  of  the  assignor  and  subject  to  all  equities 
existing  at  the  time  of  the  assignment  of  the  assignor.  Thus  if 
it  should  happen  that  before  the  assignment  of  the  mortgage  the 
mortgagor  has  paid  the  mortgagee  a  portion  of  the  principal  of 
the  mortgage  or  has  some  other  set-off,  his  set-off  is  good  against 
the  assignee  even  though  the  assignor  made  no  mention  of  it 
(Morgan's  Appeal,  126  Pa.  500).  In  order  to  protect  himself 
therefore  against  such  possible  contingencies  it  is  customary  for 
the  assignee  to  have  the  mortgagor  execute  a  certificate  of  no 
set-off  which  is  set  forth  and  explained  in  the  next  paragraph. 
It  is  recommended  that  the  assignee  always  requires  a  certificate 
of  no  set-off  as  in  no  other  way  can  he  be  safe. 

103.  Certificate  of  No  Set-Off.     Form. 

A  certificate  of  no  set  off  is  an  instrument  in  writing  signed 
and  sealed  by  the  mortgagee  in  which  he  certifies  that  he  acknowl- 


Mortgages.  139 

edges  the  receipt  of  notice  of  assignment  of  the  mortgage  and 
bond,  and  declares  what  amount  of  the  principal  of  the  mortgage 
debt  is  he  still  owes  and  that  he  has  no  set-off  charge  or  other 
claim  against  the  same.    The  form  is  as  follows : 

Certificate  of  No  Set-Off.* 

Whereas,  /,  John  Smith,  of  the  City  of  Philadelphia,  State  of 
Pennsylvania,  being  the  present  owner  in  fee,  of  the  premises 
described  in  the  Indenture  of  Mortgage  hereinafter  recited,  <io 
hereby  acknowledge  that  /  have  received  notice  of  an  assignment 
about  to  be  made  of  the  said  Mortgage,  and  of  the  Bond  or  Obli- 
gation therein  recited  by  Richard  Black  of  the* City  of  Philadel- 
phia, State  of  Pennsylvania,  the  holder  thereof,  to  Robert  John- 
son, of  the  said  City  and  State,  and  /  do  hereby  declare  that  the 
sum  of  Thirty-five  Hundred  ($3500.00)  Dollars  being  the 
amount  of  the  Mortgage  thereof,  is  still  owing  with  interest,  at 
the  rate  of  five  and  four-tenths  per  cent,  per  annum,  from  the 
second  day  of  January,  A.  D.  1012,  and  thereafter  payable  half- 
yearly,  on  the  second  day  of  the  months  of  July  and  January 
upon  the  Bond  and  Mortgage  given  by  John  Smith  to  Richard 
Black  dated  the  second  day  of  January,  A.  D.  1012.  Recorded  at 
Philadelphia  in  Mortgage  Book  P.  G.,  No.  120,  page  249,  &c,  of 
Thirty-five  Hundred  ($1500.00)  Dollars,  and  that  no  part  of 
said  Mortgage  Debt  has  been  paid  off,  and  that  /  have  no  charge, 
claim,  demand,  plea,  or  set-off  upon,  for  or  against  the  same,  in 
any  way  or  manner  whatever. 

Witness  my  hand  and  seal  this  seventh  day  of  February,  A.  D. 
1912. 

Sealed  and  delivered  in  the  ~> 
presence  of  I 

J  (Seal.) 

It  is  to  be  noted  that  this  certificate  of  no  set-off  accomplishes 
two  objects;  it  is  an  acknowledgment  by  the  mortgagor,  that  he 
has  received  notice  of  the  assignment  which  we  found  it  is  in- 
cumbent on  the  assignee  to  give  (See  Par.  102)  ;  and,  second,  it  is 
an  admission  of  the  debt  and  that  no  defence  exists  thereto.  If 
there  is  more  than  one  mortgagor  the  certificate  of  no  set-off 
should  be  executed  by  all.  The  mortgagor  cannot  be  compelled 
to  execute  this  certificate,  although  few  would  be  so  ungracious 
as  to  refuse.  But  should  the  refusal  be  persisted  in,  it  of  course, 
puts  the  proposed  assignee  on  his  guard  and  he  should  make 
diligent  inquiry  before  taking  the  assignment. 

*This  is  the  regular  printed  form  of  certificate  of  no  set  off,  which  can 
be  purchased  at  any  law  blank  stationer.  The  words  in  italics  are  to  be 
filled  in  by  the  conveyancer  as  circumstances  may  require. 


CHAPTER  VII. 


Ground  Rents. 


Page. 

SECTION    I. 

104.  Definition  and  History  . . .    140 

105.  Form  and  Analysis   142 

SECTION  11. 

NATURE   AND   KIND   OF  GROUND 

RENTS. 

106.  A    Ground    Rent    is    Real 

Estate 149 

107.  Irredeemable  Ground  Rents  150 

108.  Redeemable  Ground  Rents  150 

109.  Apportionment  of  Ground 

Rents 150 

SECTION   III. 

REMEDIES   FOR   COLLECTION   OF 

GROUND   RENTS. 

1 10.  When     and     How     Rent 

Must  be  Paid  151 

in.  Remedy  by  Distress    151 

112.  Remedy  by  Re-entry  151 


Page. 

113.  Remedy     by      Action      of 

Ejectment  152 

114.  Remedy  by  Suit  or  Action 

of  Assumpsit 152 

SECTION    IV. 

LIEN   AND   DISCHARGE  OF   GROUND 

RENTS. 

115.  Lien  of  Ground  Rents  and 

Arrearages  of  Rent   . . .   152 

116.  Discharge     of     Ground 

Rents     by     Extinguish- 
ment.    Form 153 

117.  Discharge  by  Merger  ....   155 

118.  Discharge     by     Order     of 

Court    After    Lapse    of 

21  Years  156 

119.  Discharge  of  Ground  Rent 

on  Judicial  Sale 156 

SECTION   v. 

120.  Mortgages      and      Ground 

Rents  Compared   156 


SECTION   I. 


DEFINITION.       FORM    AND    ANALYSIS. 

104.     Ground  Eent.     Definition.     History. 

The  meaning  of  ground  rent  is  generally  misunderstood  more 
than  any  other  term  in  the  science  of  conveyancing,  and  this  is 
in  a  great  measure  due  to  its  inappropriate  name,  which  leads 
most  people  to  believe  it  to  mean  rented  ground.  The  idea  that 
a  man  who  pays  ground  rent  does  not  own  the  ground  in  fee  is 
as  unfortunate  as  it  is  erroneous.  The  real  meaning  of  the 
term  ground  rent  is  best  explained  by  briefly  developing  its  his- 
tory. In  early  English  history  there  existed  an  estate  in  land 
called  a  Rent  Service,  which  was  created  by  a  lord  conveying 
land  to  one  of  his  vassals  in  fee,  reserving  to  himself,  however, 
the  right  to  call  upon  his  vassal's  service  so  long  as  he  remained 

140 


Ground  Rents.  141 

the  owner  of  the  land.  Later,  instead  of  reserving  the  right  of 
demanding  the  actual  service  of  the  vassals,  the  lords  granting 
the  land  began  to  reserve  to  themselves  the  right  to  receive 
annually  a  certain  sum  of  money  instead.  At  common  law, 
therefore,  a  rent  service  became  an  estate  in  land  reserved  by 
the  grantor  to  himself  out  of  the  granted  estate.  This  reserved 
part  usually  consisted  of  a  right  to  services  or  a  right  to  receive 
a  certain  sum  of  money  paid  at  fixed  intervals  according  to  the 
terms  of  the  grant.  The  so-called  ground  rent  is  a  lineal  dece- 
dent of  the  old  rent  service.  It  possesses  all  its  attributes  (In- 
gersoll  v.  Sergeant,  1  Whart.  337)  and  is  created  the  same  way. 
The  method  of  creating  a  ground  rent  is  as  follows :  The  owner 
of  the  land  conveys  to  a  grantee  his  whole  estate,  reserving, 
however,  for  himself  the  ground  rent  out  of  it.  The  former 
owner  or  grantor  then  has  the  ground  rent  estate  and  the 
grantee  owns  the  lands  subject  to  the  payment  of  this  rent.  The 
owner  of  the  ground  rent  is  sometimes  called  the  grantor  and 
sometimes  the  ground  rent  landlord.  The  owner  of  the  land 
subject  to  the  payment  of  the  ground  rent  is  sometimes  called  the 
grantee;  sometimes  the  terre  tenant  and  sometimes  the  cove- 
nantor. A  ground  rent  can  only  be  created  by  the  person  having 
a  fee  simple  estate  reserving  it  out  of  a  conveyance  to  some  one 
else.  Therefore,  if  A  desires  to  give  B  a  ground  rent  in  a 
certain  piece  of  land,  he  must  first  convey  unto  B  his  whole 
estate,  which  makes  B  the  owner  in  fee.  B  must  now  reconvey 
the  land  to  A,  reserving  unto  himself  a  sum  of  money  or  rental 
to  be  paid  yearly.  A  is  once  again  the  owner  in  fee  of  the 
land,  but  he  must  now  pay  to  B  a  certain  tribute  every  year. 
Thus  it  will  be  seen  that  a  ground  rent  is  nothing  more  or  less 
than  "a  rent  (usually  a  sum  of  money  payable  at  stated  in- 
tervals) reserved  by  a  grantor,  to  himself,  his  heirs  and  assigns 
in  conveying  land  in  fee"  (Ingersoll  v.  Sergeant,  1  Whart.  337). 
This  rent,  while  usually  a  sum  of  money,  like  the  common  law 
rent  service,  may  either  be  in  kind,  services  or  chattels. 

The  ground  rent  is  generally  unknown  throughout  the  rest 
of  this  country.  It  is  in  use  in  some  few  of  the  states,  perhaps  in 
parts  of  New  York  or  New  Jersey.  With  these  exceptions  it 
is  peculiar  to  Pennsylvania,  and  even  in  Pennsylvania  outside  of 
the  City  of  Philadelphia  it  is  a  rarity.  In  Philadelphia,  however, 
ground  rents  are  very  common.  The  creation  of  ground  rents 
were  used  for  the  building  up  of  the  City  of  Philadelphia,  and 


i42  Conveyancing  in   Pennsylvania. 

was  of  inestimable  value  in  doing  it.  The  method  was  that  the 
owner  of  a  tract  of  land  would  convey  it  to  B,  reserving  a  per- 
petual rent  generally  with  a  condition  that  the  rent  might  be 
paid  off  within  a  certain  time  upon  the  payment  of  an  amount 
equal  to  the  rent  capitalized  at  6%.  Of  course,  the  advantage 
of  the  ground  rent  was  that  the  purchaser  or  grantee  did  not 
need  to  pay  any  ready  money  to  complete  his  purchase,  but 
simply  had  to  go  upon  the  land,  improve  it  and  so  earn  the 
purchase  money.  Again,  the  ground  rent  was  used  and  to  this 
day  is  still  used  as  an  incumbrance  for  the  loaning  of  money, 
as  in  the  case  of  a  mortgage.  In  such  case,  as  explained  before, 
A  being  the  owner  of  the  land  and  desiring  to  borrow  money 
on  it  would  convey  it  to  B  for  a  nominal  consideration  and  B 
would  immediately  reconvey  it  to  A,  reserving  the  rent;  in  this 
way  the  ground  rent  estate  became  a  security  for  the  money 
loaned. 

105.    Form  and  Analysis  of  Ground  Rents. 
Ground  Rent  Deed.* 

This  Indenture,  made  the  first  day  of  February,  in  the  year 
of  our  Lord  one  thousand  nine  hundred  and  twelve  (1912),  be- 
tween John  Smith,  gentleman,  of  the  City  of  Philadelphia,  State 
of  Pennsylvania,  of  the  one  part,  and  Rudolph  Long,  of  the 
City  of  Philadelphia,  State  of  Pennsylvania,  builder,  of  the  other 
part.  Witnesseth,  That  the  said  John  Smith,  as  well  for  and 
in  consideration  of  the  sum  of  one  ($1.00)  dollar,  lawful  money, 
unto  him,  at  or  before  the  sealing  and  delivery  hereof,  by  the 
said  Rudolph  Long,  well  and  truly  paid,  the  receipt  whereof  is 
hereby  acknowledged,  as  of  the  payment  of  the  yearly  rent 
and  taxes,  and  performance  of  the  covenants  and  agreements 
hereinafter  mentioned,  which  on  the  part  cf  the  said  Rudolph 
Long,  his  heirs  and  assigns,  is  and  are  to  be  paid  and  per- 
formed, hath  granted,  bargained,  sold,  aliened,  enfeoffed,  re- 
leased and  confirmed,  and  by  these  presents  doth  grant,  bargain, 
sell,  alien,  enfeoff,  release  and  confirm  unto  the  said  Rudolph 
Long,  his  heirs  and  assigns,  all  that  certain  lot  or  piece  of 
ground  situate  on  the  west  side  of  Y  Street  at  a  distance  of 
three  hundred  and  thirty-seven  (33/ )  feet  northward  from  the 
north  side  of  X  Street,  in  the  Fiftieth  Ward  of  the  City  of  Phila- 
delphia, containing  in  front  or  breadth  of  said  Y  Street  eighteen 

*This  is  also  a  regular  printed  form  of  ground  rent  deed,  which  can  be 
purchased  at  any  law  blank  seller.  Words  in  italics  are  to  be  filled  in  by 
the  conveyancer  as  circumstances  may  require. 


Ground  Rents.  143 

(18' )  feet  and  extending  of  that  tvidth  in  length  or  depth  west- 
ward betzveen  two  parallel  lines  at  right  angles  to  said  X  Street 
one  hundred  ( 100' )  feet  to  a  certain  three  feet  wide  alley,  and 
extending  northward  from  X  Street  to  Z  Street. 

Being  the  same  premises  which  Andrew  Brown  and  wife,  by 
indenture  bearing  date  the  second  day  of  January,  A.  D.  10 12, 
and  recorded  in  the  Office  for  the  Recording  of  Deeds  in  Deed 
Book  W .  S.  V .  No.  1362,  page  45,  etc.,  granted  and  conveyed 
unto  the  said  John  Smith  in  fee. 

Together  with  the  right,  liberty  and  privilege  of  the  afore- 
said alley  as  and  for  a  passageway,  and  water  course  hereafter 
forever.     And 

Together  with  all  and  singular  the  buildings,  ways,  streets, 
alleys,  passages,  waters,  water-courses,  rights,  liberties,  privileges, 
hereditaments  and  appurtenances  whatsoever,  unto  the  said  hereby 
granted  premises  belonging,  or  in  any  wise  appertaining,  and  the 
reversions  and  remainders  thereof:     To  have  and  to  hold  the 
said  described  lot  or  piece  of  ground,  hereditaments  and  premises 
hereby  granted,  with  the  appurtenances,  unto  the  said  Rudolph 
Long,  his  heirs  and  assigns,  to  the  only  proper  use  and  behoof  of 
the  said  Rudolph  Long,  his  heirs  and  assigns,  forever,  Yielding 
and  paying  therefor  and  thereout,  unto  the  said  John  Smith, 
his    heirs    and    assigns,     the    yearly    rent    or    sum    of    sixty 
($60.00)     dollars,    lawful    money    of    the    United    States    of 
America,   in   half  yearly   payments,   on   the  first   day   of   Feb- 
ruary  and   first   day  of   August   in   every   year   hereafter    for- 
ever,   without    and    deduction,    defalcation    or    abatement,    for 
any  taxes,  charges  or  assessments  whatsoever,  to  be  assessed,  as 
well  on  the  said  hereby  granted  lot  as  on  the  said  yearly  rent 
hereby  and  thereout  reserved ;  the  first  payment  thereof  to  be 
made  on  the  first  day  of  August,  one  thousand  nine  hundred  and 
twelve   (1912),  and  on  default  of  paying  the  said  yearly  rent 
on  the  day  and  time  and  in  manner  aforesaid,  it  shall  and  may 
be  lawful  for  the  said  John  Smith,  his  heirs  and  assigns,  to 
enter  into  and  upon  the  said  hereby  granted  premises,  or  any 
part  thereof,  and  into  the  buildings  thereon  erected  or  to  be 
erected,  and  to  distrain  for  the  said  yearly  rent  so  in  arrear  and 
unpaid,  without  any  exemption  whatsoever,  any  law  to  the  con- 
trary thereof  in  any  wise  notwithstanding,  and  to  proceed  with 
and  sell  such  distrained  goods  and  effects  according  to  the  usual 
course  of  distresses  for  rent  charges.     But  if  sufficient  distress 
cannot  be  found  upon  the  said  hereby  granted  premises  to  satisfy 
the  said  yearly  rent  in  arrear,  and  the  charges  of  levying  the 
same,  then  and  in  such  case  it  shall  and  may  be  lawful  for  the 
said  John  Smith,  his  heirs  and  assigns,  into  and  upon  the  said 
hereby  granted  lot  and  all  improvements  wholly  to  re-enter,  and 
the  same  to  have  again,  repossess  and  enjoy,  as  in  his  or  their 
first  and  former  estate  and  title  in  the  same,  and  as  though  this 
indenture  had  never  been  made.     And  if  at  any  time  suit  shall 


144  Conveyancing  in   Pennsylvania. 

be  properly  brought  by  the  said  grantor,  his  heirs  and  assigns, 
to  recover  any  arrearages  of  the  yearly  rent  then  due  and  unpaid, 
then  and  in  such  case,  an  attorney's  fee  of  fifty  ($50.00)   dol- 
lars, shall  be  added  to  the  arrearages  of  the  yearly  rent,  and  be 
recovered  and  collected  in  such  suit,  as  part  of  the  costs  thereof. 
And  the  said  Rudolph  Long,  his  heirs,  executors,  administrators 
and  assigns  do  covenant,  promise  and  agree,  to  and  with  the 
said  John  Smith,  his  heirs  and  assigns,  by  these  presents,  that 
he,  the  said  Rudolph  Long,  his  heirs  and  assigns,  shall  and  will 
well  and  truly  pay,  or  cause  to  be  paid,  to  the  said  John  Smith, 
his  heirs  and  assigns,  the  aforesaid  yearly  rent  or  sum  of  sixty 
($60.00)  dollars,  lawful  money  aforesaid,  on  the  dayy  and  time^ 
hereinbefore    mentioned    and    appointed    for    payment    thereof, 
without  any  deduction,  defalcation,  or  abatement  for  any  taxes, 
charges  or  assessments  whatsoever;  it  being  the  express  agree- 
ment of  the  said  parties,  that  the  said  Rudolph  Long,  his  heirs 
and  assigns,  shall  pay  all  taxes  whatsoever  that  shall  hereafter 
be  laid,  levied  or  assessed  by  virtue  of  any  laws  whatever,  as 
well  on  the  said  hereby  granted  lot  and  buildings  thereon  erected 
or  to  be  erected,  as  on  the  said  yearly  rent  now  charged  thereon. 
(Also,  that  he,  the  said  Rudolph  Long,  his  heirs  or  assigns,  shall 
and  will  within   three  years   from  the   date  hereof,   erect  and 
build  on  the  said  hereby  granted  lot  a  two-story  stable  to  secure 
the  said  yearly  rent  hereby  reserved.)     And  further,  the  said 
Rudolph  Long   doth  hereby   for  himself,  his  heirs,   executors, 
administrators  and  assigns,  expressly  waive,  relinquish  and  dis- 
pense unto  the  said  John  Smith,  his  heirs,  executors,  administra- 
tors and  assigns,  all  and  every  provisions  and  provision  in  the  Act 
of  Assembly  of  the  Commonwealth  of  Pennsylvania,  passed  on 
the  ninth  day  of  April,  A.  D.  1849,  entitled  "An  act  to  exempt 
property  to  the  value  of  three  hundred  dollars  from  levy  and 
sale  on  execution  and  distress  for  rent,"  so  far  as  the  same  may 
exempt  the  said  hereby  granted  lot  and  any  part  thereof,  and  any 
buildings  or  improvements  to  be  erected  or  placed  thereon,  from 
levy  and  sale,  by  virtue  of  any  writ  of  execution  that  may  be 
issued  upon  any  judgment  that  may  be  obtained  or  entered  in  any 
action  for  the  recovery  of  the  rent  hereby  reserved,  or  hereby 
covenanted  to  be  paid,  and  of  any  arrears  thereof,  and  of  the 
costs  of  such  action  and  execution :  also,  any  other  act  of  as- 
sembly now  or  hereafter  to  be  passed,  authorizing  any  stay  of 
execution  upon  any  judgment  until  an  appraisement  of  the  prop- 
erty shall  be  made,  or  upon  any  other  condition  whatsoever;  so 
that    it    shall    be    lawful    for    the    said    John   Smith,    his   heirs, 
executors,  administrators  or  assigns,  to  proceed,  bv  execution, 
to  levy  upon  and  sell  the  said  herebv  granted  lot  of  ground,  and 
every   part   thereof,    with    the   buildings    and    improvements   as 
aforesaid,  in  the  same  manner  and  to  the  same  extent  and  to  the 
same  effect,  to  all  intents  and  purposes,  as  If  no  such  act  of  as- 
sembly had  been  passed:     Provided  always,  nevertheless,  That 


Ground  Rents.  145 

if  the  said  Rudolph  Long,  his  heirs  or  assigns,  shall  and  do  at 
any  time  after  the  expiration  of  ten  years  from  the  date  hereof 
pay,  or  cause  to  be  paid  to  the  said  John  Smith,  his  heirs  or 
assigns,  the  sum  of  one  thousand  ($1,000.00)  dollars  lawful 
money  as  aforesaid,  and  the  arrearages  of  the  said  yearly  rent  to 
the  time  of  such  payment,  then  the  same  shall  forever  thereafter 
cease  and  be  extinguished,  and  the  covenant  for  payment  thereof 
shall  become  void ;  and  then  he,  the  said  John  Smith,  his  heirs, 
or  assigns,  shall  and  will,  at  the  proper  costs  and  charges  in  the 
law  of  the  said  grantee,  his  heirs  or  assigns,  seal  and  execute 
a  sufficient  release  and  discharge  of  the  said  yearly  rent  hereby 
reserved,  to  the  said  Rudolph  Long,  his  heirs  and  assigns,  for- 
ever, anything  hereinbefore  contained  to  the  contrary  thereof 
notwithstanding.  And  the  said  John  Smith,  for  himself  his 
heirs,  executors  and  administrators,  do//*  covenant,  promise  and 
agree  to  and  with  the  said  Rudolph  Long,  his  heirs  and  assigns, 
by  these  presents,  that  he,  the  said  Rudolph  Long,  his  heirs 
and  assigns,  paying  the  said  yearly  rent,  or  extinguishing  the 
same,  and  taxes,  and  performing  the  covenants  and  agreements 
aforesaid,  shall  and  may  at  all  times  hereafter  forever,  freely, 
peaceably  and  quietly  have,  hold  and  enjoy,  all  and  singular 
the  premises  hereby  granted,  with  the  appurtenances,  and  receive 
and  take  the  rents  and  profits  thereof,  without  any  molestation, 
interruption  or  eviction  of  the  said  John  Smith,  his  heirs,  or  any 
other  person  or  persons  whomsoever,  lawfully  claiming  or  to 
claim,  by,  from  or  under  him  or  them,  or  any  of  them,  or  by  or 
with  his  or  their,  or  any  of  their  act,  means,  consent  or  procure- 
ment. 

In  witness  whereof,  the  said  parties  to  these  presents  have 
hereunto  interchangeably  set  their  hands  and  seals  the  day  and 
years  first  above  written. 
Sealed  and  delivered  in  the 

presence  of  us : 

Richard  Roe.  John  Smith.  (Seal.) 

John  Doe,  J       Rudolph   Long.     (Seal.) 

On  the  first  day  of  February,  Anno  Domini  1012,  before  me, 
the  subscriber,  a  notary  public  for  the  Commonwealth  of  Penn- 
sylvania, residing  in  the  City  of  Philadelphia,  personally  ap- 
peared the  above-named  John  Smith  and  Rudolph  Long,  and 
in  due  form  of  law  acknowledged  the  above  indenture  to  be 
their  and  each  of  their  act  and  deed,  and  desired  the  same  might 
be  recorded  as  such. 

Witness  my  hand  and  notarial  seal,  the  day  and  year  afore- 
said. 

Richard  Roe, 
Notary  Public. 
Commission  expires  February  25,  101$. 


146  Conveyancing  in   Pennsylvania. 

The  instrument  by  which  a  ground  rent  is  created  is  called  a 
ground  rent  deed.  This  deed  contains  covenants  on  the  part  of 
the  grantor  and  grantee  and  is  executed  in  duplicate  as  all  in- 
dentures ones  were  (See  Par.  52).  One  copy  is  recorded  and 
the  other  marked  counterpart  and  they  are  retained  by  the  owner 
of  the  land  and  of  the  ground  rent,  respectively.  By  examining 
the  form  set  forth  on  page  142  it  will  be  seen  that  a  ground  rent 
deed  reads  the  same  as  an  ordinary  deed  of  conveyance  until  you 
reach  the  habendum  (to  have  and  to  hold  clause),  where,  after 
the  word  forever  is  added  the  following  (See  form,  page  143), 
which  may  be  termed  "Reservation." 

Yielding  and  paying  therefor  and  thereout,  unto  the 
said  John  Smith,  his  heirs  and  assigns,  the  yearly  rent 
or  sum  of  sixty  ($60.00)  dollars  lawful  money  of  the 
United  States  of  America,  in  half-yearly  payments  on 
the  first  day  of  February  and  first  day  of  August  in  every 
year  hereafter,  forever,  without  any  deduction,  defalca- 
tion or  abatement,  for  any  taxes,  charges  or  assessments 
whatsoever,  to  be  assessed,  as  well  on  the  said  hereby 
granted  lot  as  on  the  said  yearly  rent  hereby  and  there- 
out reserved  ;  the  first  payment  thereof  to  be  made  on  the 
first  day  of  August,  one  thousand  nine  hundred  and 
twelve  ( 1912).  And  on  default  of  paying  the  said  yearly 
rent  on  the  days  and  times  and  in  manner  aforesaid,  it 
shall  and  may  be  lawful  for  the  said  John  Smith,  his 
heirs  and  assigns,  to  enter  into  and  upon  the  said  hereby 
granted  premises,  or  any  part  thereof,  and  into  the  build- 
ings thereon  erected  or  to  be  erected,  and  to  distrain  for 
the  said  yearly  rent  so  in  arrear  and  unpaid,  without  any 
exemption  whatsoever,  any  law  to  the  contrary  thereof 
in  any  wise  notwithstanding,  and  to  proceed  with  and  sell 
such  distrained  goods  and  effects  according  to  the  usual 
course  of  distresses  for  rent  charges.  But  if  sufficient 
distress  cannot  be  found  upon  the  said  hereby  granted 
premises  to  satisfy  the  said  yearly  rent  in  arrear,  and  the 
charges  of  levying  the  same,  then  and  in  such  case  it 
shall  and  may  be  lawful  for  the  said  John  Smith,  his 
heirs  and  assigns,  into  and  upon  the  said  hereby  granted 
lot  and  all  improvements  wholly  to  re-enter,  and  the 
same  to  have  again,  repossess  and  enjoy,  as  in  his  or 
their  first  and  former  estate  and  title  in  the  same,  and  as 
though  this  indenture  had  never  been  made.  And  if  at 
any  time  suit  shall  be  properly  brought  by  the  said 
grantor,  his  heirs  and  assigns,  to  recover  any  arrearages 
of  the  yearly  rent  then  due  and  unpaid,  then  and  in  such 
case,  an  attorney's  fees  of  fifty  ($50.00)  dollars,  shall  be 
added  to  the  arrearages  of  the  yearly  rent,  and  be  recov- 


Ground  Rents.  147 

ered  and  collected   in  such  suit,  as  part  of  the  costs 
thereof.    And  the  said  Rudolph  Long,  his  heirs,  execu- 
tors, administrators  and  assigns,  do  covenant,  promise 
and  agree,  to  and  with  the  said  John  Smith,  his  heirs 
and  assigns,  by  these  presents,  that  he  the  said  Rudolph 
Long,  his  heirs  and  assigns,  shall  and  will  well  and  truly 
pay,  or  cause  to  be  paid,  to  the  said  John  Smith,  his 
heirs  and  assigns,  the  aforesaid  yearly  rent  or  sum  of 
sixty  ($60.00)   dollars  lawful  money  aforesaid,  on  the 
days  and  times  hereinbefore  mentioned  and  appointed 
for  payment  thereof,  without  any  deduction,  defalcation 
or  abatement   for   any   taxes,   charges   or   assessments 
whatsoever ;  it  being  the  express  agreement  of  the  said 
parties,  that  the  said  Rudolph  Long,  his  heirs  and  as- 
signs, shall  pay  all  taxes  whatsoever  that  shall  hereafter 
be  laid,  levied  or  assessed  by  virtue  of  any  laws  whatever, 
as  well  on  the  said  hereby  granted  lot  and  buildings 
thereon  erected  or  to  be  erected,  as  on  the  said  yearly 
rent  now  charged  thereon.      (Also,  that  he,  the  said 
Rudolph  Long,  his  heirs  and  assigns,  shall  and  will 
within  three  years  from  the  date  hereof,  erect  and  build, 
on  the  said  hereby  granted  lot  a  two-story  stable  to  se- 
cure the  said  yearly  rent  hereby  reserved.)    And  further, 
the  said  Rudolph  Long  doth  hereby  for  himself,  his 
heirs,  executors,  administrators  and  assigns,  expressly 
waive,    relinquish    and    dispense   unto    the    said   John 
Smith,  his  heirs,  executors,  administrators  and  assigns, 
all  and  every  provision  in  the  act  of  assembly  of  the 
Commonwealth  of  Pennsylvania,  passed  on  the  ninth 
day  of  April,  A.  D.  1849,  entitled  "An  act  to  exempt 
property  to  the  value  of  three  hundred  dollars  from  levy 
and  sale  on  execution  and  distress  for  rent,"  so  far  as  the 
same  may  exempt  the  said  hereby  granted  lot  and  any 
part  thereof,  and  any  buildings  or  improvements  to  be 
erected  or  placed  thereon,  from  levy  and  sale,  by  virtue 
of  any  writ  of  execution  that  may  be  issued  upon  any 
judgment  that  may  be  obtained  cr  entered  in  any  action 
for  the  recovery  of  the  rent  hereby  reserved,  or  hereby 
covenanted  to  be  paid,  and  of  any  arrears  thereof,  and 
of  the  costs  of  such  action  and  execution;  also  any  other 
act  of  assembly  now  or  hereafter  to  be  passed,  authoriz- 
ing any  stay  of  execution  upon  any  judgment  until  an 
appraisement  of  the  property  shall  be  made,  or  upon  any 
other  condition  whatsoever;  so  that  it  shall  be  lawful  for 
the  said  John  Smith,  his  heirs,  executors,  administra- 
tors or  assigns,  to  proceed,  by  execution,  to  levy  upon 
and  sell  the  said  hereby  granted  lot  of  ground,  and  every 
part  thereof,  with  the  buildings  and  improvements  as 
aforesaid,  in  the  same  manner  and  to  the  same  extent 


148  Conveyancing  in   Pennsylvania. 

and  to  the  same  effect,  to  all  intents  and  purposes,  as  if 
no  such  act  of  assembly  had  been  passed:     Provided 
always,  nevertheless,  That  if  the  said  Rudolph  Long, 
his  heirs  or  assigns,  shall  and  do  at  any  time  after  the 
expiration  of  ten  years  from  the  date  hereof  pay,  or 
cause  to  be  paid  to  the  said  John  Smith,  his  heirs  or 
assigns,  the  sum  of  one  thousand   ($1,000.00)    dollars 
lawful  money  as  aforesaid,  and  the  arrearages  of  the 
said  yearly  rent  to  the  time  of  such  payment,  then  the 
same  shall  forever  thereafter  cease  and  be  extinguished, 
and  the  covenant  for  payment  thereof  shall  become  void; 
and  then  he,  the  said  John  Smith,  his  heirs  or  assigns, 
shall  and  will  at  the  proper  costs  and  charges  in  the  law 
of  the  said  grantee,  his  heirs  or  assigns,  seal  and  exe- 
cute a  sufficient  release  and  discharge  of  the  said  yearly 
rent  hereby  reserved,  to  the  said  Rudolph  Long,  his 
heirs  and  assigns,  forever,  anything  hereinbefore  con- 
tained to  the  contrary  thereof  notwithstanding.    And  the 
said  John  Smith,  for  himself,  his  heirs,  executors  and 
administrators,  doth  covenant,  promise  and  agree  to  and 
with  the  said  Rudolph  Long,  his  heirs  and  assigns,  by 
these  presents  that  he  the  said  Rudolph  Long,  his  heirs 
and  assigns,  paying  the  said  yearly  rent,  or  extinguishing 
the  same,  and  taxes,  and  performing  the  covenants  and 
agreements  aforesaid,  shall  and  may  at  all  time  here- 
after forever,  freely,  peaceably,  and  quietly  have,  hold 
and  enjoy,  all  and  singular  the  premises  hereby  granted, 
with  the  appurtenances  and  receive  and  take  the  rents 
and  profits  thereof,  without  any  molestation,  interruption 
or  eviction  of  John  Smith,  his  heirs,  or  of  any  other 
person  or  persons  whomsoever,  lawfully  claiming  or  to 
claim  by,  from  or  under  him  or  them,  or  any  of  them, 
or  by  or  with  his  or  their,  or  any  of  their  act,  means,  con- 
sent or  procurement. 
Analyzing  this  it  will  be  seen  that  it  provides,  first,  for  the 
amount  of  rent  reserved  in  what,  and  how  it  shall  be  paid. 
Modern  ground  rent  deeds  set  forth  merely  lawful  money  of 
the  United  States,  the  older  ones  usually  stipulated  the  metal, 
and  specified  the  weight  and  fineness.     Then  follows  an  agree- 
ment permitting  the  grantor  or  owner  of  ground  rent,  his  heirs 
or  assigns  to  enter  to  make  distress  if  the  rent  is  unpaid  and 
following  it  a  provision  that  if  sufficient  distress  be  not  found 
the    grantor,    his    heirs    or    assigns    may    re-enter    and    take 
possession.      Modern    ground    rent    deeds    also    have   the   next 
clause   inserted   providing   for   an   attorney's    fee   of   whatever 
.amount  agreed  on,  to  be  added  to  the  arrearages  of  the  ground 


Ground  Rents.  149 

rent,  should  it  be  necessary  to  commence  suit  thereon.  This  pro- 
vision for  attorney's  fee  relieves  the  grantor  from  this  burden 
which  he  bore  under  the  older  deeds  and  saddles  it  on  the  grantee. 
Next  a  covenant  on  the  part  of  the  grantee  to  pay  all  the  taxes 
assessed  against  the  property  which  is  important  in  that  it  re- 
lieves the  grantor  from  paying  any  taxes  on  his  ground  rent. 

The  clause  in  parentheses  may  be  termed  the  "covenant 
to  build."  As  here  set  forth,  it  requires  the  grantee  to 
build  a  stable.  If  improvements  are  already  erected  on  the  lot 
and  no  additional  ones  contemplated,  this  clause  should  be 
omitted  or  crossed  out.  The  next  clause  is  that  waiving  the 
Exemption  Act.  The  remedy  of  distress  is  of  little  value  unless 
the  Exemption  Act  is  waived,  so  care  should  be  taken  to  always 
insert  it.  Then  follows  the  agreement  that  if  at  any  time  the 
owner  of  the  ground  rent  is  paid  $1,000.00  (which  is  the  capital- 
ized principal  of  $60.00  per  year  at  6%)  he  will  execute  the  neces- 
sary instruments  to  extinguish  it.  The  rest  is  the  usual  covenant 
of  quiet  enjoyment  and  is  self  explanatory. 

SECTION  11. 

NATURE   AND   KINDS  OE   GROUND   RENTS. 

106.     A  Ground  Rent  is  Real  Estate. 

From  the  foregoing  section  it  is  readily  seen  that  a  ground 
rent  is  essentially  different  from  a  mortgage  both  in  creation  and 
effect.  A  ground  rent  is  an  estate  in  the  land  and  is,  therefore, 
real  estate,  whereas  a  mortgage  is  but  a  pledge  of  the  land  to 
repay  a  debt  and  is  personal  property.  A  ground  rent  is  an 
estate  in  land  and  is  an  estate  in  fee,  although  separate  and 
distinct  the  fee  estate  of  the  land  itself,  out  of  which  it  issues. 
The  ground  rent  being  an  incorporeal  estate  and  the  latter  a 
corporeal  estate.  A  ground  rent  being  real  estate  may  itself 
be  mortgaged  ( Weidner  v.  Foster,  2  P.  &  W.  23;  Bank  of  Com- 
merce v.  Peace,  27  Pa.  Superior  644).  It  is  just  like  other 
real  property,  subject  to  the  assessment  and  payment  of 
real  estate  taxes  and  upon  death  of  the  owner  it  passes  to  the 
devisee  or  heir  and  not  to  the  executor  or  administrators.  The 
fact  that  a  ground  rent  is  real  estate  is  likewise  reflected  in  the 
the  instrument  creating  it  and  in  a  way  it  is  extinguished. 


150  Conveyancing  in   Pennsylvania. 

107.  Irredeemable  Ground  Bents. 

Ground  rents  in  Pennsylvania  are  of  two  kinds,  Redeemable 
and  Irredeemable.  Irredeemable  ground  rents,  as  the  name 
implies,  are  such  as  can  never  be  redeemed,  that  is,  never  paid 
off.  These  irredeemable  ground  rents  were  the  older  form,  for 
originally  ground  rents  were  perpetual  when  the  deeds  reserving 
them  used  the  words  "In  every  year  hereafter  forever."  Later 
it  became  customary  to  place  in  the  deed  reserving  the  ground 
rent  a  provision  that  if  said  ground  rent  should  not  be  ex- 
tinguished (»".  e.,  paid  off)  within  a  specified  period  it  should  be- 
come irredeemable.  Although  at  the  present  time  there  are 
few  ground  rents  existing  in  Pennsylvania  which  were  originally 
irredeemable,  there  are  many  still  existing  which  have  become 
irredeemable  by  operation  of  the  clause  such  as  above  stated. 
Since  the  Act  of  June  24,  1885,  P.  L.  161,  no  new  irredeemable 
ground  rents  can  be  created  for  that  act  in  positive  terms  forbids 
their  creation  and  provides  that  notwithstanding  any  irredeem- 
able clause  in  a  ground  rent  created  after  the  act,  it  shall  never- 
theless be  redeemable. 

108.  Redeemable  Ground  Bents. 

Redeemable  ground  rents  are  such  as  can  be  redeemed  or 
extinguished  at  any  time  after  their  creation  at  the  pleasure 
of  the  owner  of  the  land,  that  is,  the  grantee  who  must  pay  the 
ground  rent.  The  ground  rent  owner  or  ground  rent  landlord 
can  never  demand  the  payment  of  the  principal  unless  a  clause 
giving  him  such  a  right  is  inserted,  in  which  case  he  may  de- 
mand the  payment  of  the  principal  only  at  the  expiration  of  the 
term  fixed,  notwithstanding  any  default. 

109.  Apportionment  of  Ground  Bents. 

A  peculiar  attribute  of  a  ground  rent  is  that  a  ground 
becomes  apportioned  as  the  land  out  of  which  it  issues  is  di- 
vided. That  is,  suppose  a  tract  of  land  out  of  which  a  ground 
rent  issues  is  divided  into  three  parts,  out  of  each  part  of  the 
original  tract  must  be  paid  its  proportionate  part  of  the  whole 
rent,  in  this  case  one-third.  If  the  holder  of  the  remaining  part 
pays  the  whole  rent  he  may  maintain  an  action  against  the  owners 
of  the  other  parts  for  their  proportionate  contribution.  The  re- 
lease of  the  ground  rent  as  to  any  part  of  the  divided  tract  has  no 


Ground  Rents.  151 

effect  on  the  remainder,  which  still  exists  in  full  force  until  re- 
leased or  extinguished  (Ingersoll  v.  Sergeant,  1  Whart.  337). 

Not  only  may  the  land  out  of  which  the  rent  issues  be  appor- 
tioned but  the  ownership  of  the  rent  may  also  be  divided  among 
any  number  of  persons,  and  the  owner  of  any  portion  may  main- 
tain a  separate  action  for  his  portion  of  the  rent  and  the  tenant 
is  bound  to  pay  each  his  due  portion  (Reed  v.  Ward,  22  Pa. 
144). 

SECTION    III. 
REMEDIES  FOR  COLLECTION  OF  GROUND  RENT  AND  PRINCIPAL. 

110.  When  and  How  Rent  Must  be  Paid. 

The  rent  must  be  paid  according  to  the  terms  of  the  deed. 
If  it  provides  that  rent  is  to  be  paid  in  lawful  money  of  the 
United  States  it  may  be  paid  in  any  legal  tender.  If  it  provides 
"payable  in  coin  of  a  specified  weight  and  fineness"  it  must  be 
paid  by  coin  of  that  weight  and  fineness,  unless  such  coin  is  no 
longer  legal  tender,  in  which  case  it  may  be  paid  in  legal  tender 
(Cook  v.  Lovett,  17  D.  R.  347).  It  must  be  paid  when  due  or 
the  ground  rent  landlord  may  proceed  to  collect  the  rent  by  any 
remedies  hereinafter  set  forth ;  which  remedies  are  cumulative ; 
i.  e.,  the  party  entitled  to  the  ground  rent  may  invoke  any  or  all 
until  he  is  satisfied  (Hiester  v.  Shaefer,  45  Pa.  537). 

111.  Remedy  by  Distress. 

The  owner  of  the  ground  rent  may  distrain  like  the  lessor  of 
a  term  of  years.  This  right  is  an  incident  of  a  ground  rent  and 
exists  without  special  provision  in  the  deed  ("Wallace  v.  Harm- 
stead,  44  Pa.  492).  Although  the  ground  rent  deeds  usually 
have  inserted  a  distress  clause  in  the  deed  which  includes  a 
waiver  of  exemption  in  order  to  make  this  remedy  more  com- 
plete. In  distress  for  ground  rent  the  procedure  is  the  same 
as  any  other  distress  for  house  rent,  and  if  the  ground  rent  deed 
contains  a  waiver  of  the  exemption  law  it  is  usually  effective. 
Tenant's  goods  as  well  as  the  owner  is  liable  for  distress. 

112.  Remedy  by  Re-entry. 

This  remedy  is  practically  obsolete  although  it  may  still  be 
enforced.  It  is,  however,  a  troublesome  procedure  and  rarely 
used  because  the  following  steps  must  be  carefully  taken :     Dis- 


152  Conveyancing  in   Pennsylvania. 

tress  must  first  be  made  and  if  sufficient  property  be  not  found 
to  pay  the  rent  due,  an  actual  demand  must  be  made  before  sun- 
down on  the  precise  day  when  due  for  the  exact  amount  (Mc- 
Cormick  v.  Connell,  6  S.  &  R.  151).  This  demand  must  be  made 
even  though  the  land  is  unoccupied  (Hornet  v.  Singer,  35 
Superior  Ct.  491).  If  possession  of  the  land  be  refused  eject- 
ment proceedings  must  be  commenced  to  oust  the  tenant  in 
possession.  If  there  be  no  one  in  possession,  then  the  ground 
rent  landlord  may  enter  without  difficulty,  but  as  there  is  nothing 
on  record,  equity  proceeding  must  be  commenced  to  perpetuate 
testimony  (Cadwallader  v.  App,  81  Pa.  194). 

113.  Remedy  by  Action  of  Ejectment. 

Wherever  the  ground  rent  deed  provides  for  a  right  to  re- 
enter upon  the  breach  of  covenants  then  the  ground  rent  land- 
lord may  begin  an  action  of  ejectment  upon  such  breach.  This 
is  the  more  common  method  of  proceeding  where  the  right  to  re- 
enter is  desired  to  be  enforced,  having  the  advantage  of  avoid- 
ing a  personal  conflict  and  being  a  matter  of  record. 

114.  Remedy  by  Suit  or  Action  of  Assumpsit. 

The  most  common  remedy  to  recover  ground  rent  due  is  to  sue 
the  tenant,  the  person  liable  to  pay  the  ground  rent  in  an  action 
of  contract.  The  ground  rent  deed  is  a  contract  or  covenant  to 
pay  the  rent  hence  an  action  of  contract  lies.  If  the  original 
grantee  of  the  land  out  of  which  the  rent  issues  transfers  the 
land,  the  assignee  becomes  liable  to  pay  the  rent  and  a  personal 
action  may  be  commenced  against  him.  But  since  the  Act  of 
June  12,  1878,  P.  L.  205,  the  personal  liability  for  ground  rent 
remains  only  so  long  as  the  grantee  owns  the  land ;  he  is  relieved 
of  such  personal  liability  on  bona  fide  conveying  the  land  to  a 
purchaser. 

SECTION   IV. 
LIEN  AND  DISCHARGE  OF  GROUND  RENTS. 

115.     Lien  of  Ground  Rents  and  Arrearages  of  Rent. 

Strictly  speaking  a  ground  rent  is  not  a  lien,  though  its 
practical  effect  on  the  title  is  that  of  any  other  incumbrance. 
Therefore,  a  property  subject  to  a  ground  rent  would  not 
satisfy  the  terms  of  an  agreement  of  sale  calling  for  a  market- 


Ground  Rents.  153 

able  title  clear  of  all  encumbrance.  Not  only  is  the  ground  rent 
in  the  nature  of  a  lien  on  property  but  all  the  arrears  of  the 
ground  rent,  rent  or  interest  unpaid  remains  a  lien  against  the 
property  as  of  the  date  of  the  ground  rent  deed.  This  means 
that  a  mortgage  on  a  property  subject  to  a  ground  rent  comes 
after  ground  rent  arrearages  that  may  have  accrued  after  the 
mortgage  because  all  of  these  arrearages  become  liens  as  of  the 
date  of  the  ground  rent  deed.  Said  the  Supreme  Court  of  Penn- 
sylvania (Devine's  App.,  30  Pa.  351)  :  "The  priority  of  the  lien 
for  arrears  is  determinable  by  the  date  of  the  ground  rent  deed 
without  regard  to  the  time  when  they  accrued.  It  is  to  the  deed 
alone  that  the  subsequent  incumbrance  or  purchaser  can  look." 

116.     Discharge  of  Ground  Rents  by  Extinguishment.      Form. 

A  ground  rent  cannot  be  discharged  on  payment  of  principal 
sum,  by  merely  satisfying  the  record,  as  in  the  case  of  a  mort- 
gage. It  must  be  done  by  a  formal  instrument  called  a  deed  of 
extinguishment.  As  it  is  really  a  conveyance  of  real  estate,  all 
formalities  incident  to  ordinary  deeds  must  be  observed.  Thus, 
if  the  owner  of  the  ground  rent  is  married  his  wife  must  join 
in  the  deed  of  extinguishment  to  release  her  dower.  A  form  of 
a  Deed  of  Extinguishment  is  here  given.  It  is  really  an  assign- 
ment of  the  rent  to  the  owner  of  the  land  and  operates  to  ex- 
tinguish the  ground  rent  as  explained  in  the  next  paragraph 
(117).  The  same  form  can  be  used  for  assignments  of  ground 
rents  to  third  parties. 

Deed  of  Extinguishment  or  Assignment  of  Ground  Rent.* 

This  Indenture,  made  the  first  day  of  August,  in  the  year 
of  our  Lord  one  thousand  nine  hundred  and  twelve  (1912), 
Between  John  Smith,  gentleman,  of  the  City  of  Philadelphia, 
State  of  Pennsylvania,  and  Rudolph  Long,  builder,  of  the  City 
of  Philadelphia,  State  of  Pennsylvania,  of  the  other  part :  WIT- 
NESSETH, That  the  said  John  Smith,  for  and  in  consideration  of 
the  sum  of  one  thousand  ($1,000.00)  dollars,  lawful  money  of 
the  United  States  of  America,  unto  him  well  and  truly  paid  by 
the  said  Rudolph  Long  at  and  before  the  sealing  and  delivery 

♦This  is  the  regular  printed  form  of  deed  of  extinguishment  or  assign- 
ment. The  words  in  italics  are  filled  in  by  the  conveyancer.  The  same 
form  may  be  used  for  assignments  of  ground  rents,  in  which  case  in- 
stead of  using  the  words,  "sell,  release  and  confirm,"  in  the  granting 
clause,  use  the  words,  "sell,  assign,  transfer  and  set  over." 


154  Conveyancing  in   Pennsylvania. 

of  these  presents,  the  receipt  whereof  is  hereby  acknowledged, 
hath  granted,  bargained,  sold,  released,  confirmed  and  by  these 
presents  doth  grant,  bargain,  sell,  release  and  confirm  unto  the 
said  Rudolph  Long,  his  heirs  and  assigns,  all  that  certain  yearly 
ground  rent  charge  or  sum  of  sixty  dollars,  chargeable  on  and 
payable  in  half-yearly  payments  on  the  first  days  of  the  months 
of  February  and  August  in  every  year  zvithout  deduction  for 
taxes,  etc.,  issuing  out  of  all  that  certain  lot  or  piece  of  ground 
situate  on  the  ivest  side  of  "Y"  Street,  at  a  distance  of  three  hun- 
dred and  thirty-seven  (337')  feet  northward  from  the  north  side 
of  "X"  Street,  in  the  Fiftieth  Ward  of  the  City  of  Philadelphia, 
containing  in  front  or  breadth  of  said  "Y"  Street  Eighteen  (18') 
feet  and  extending  of  that  width  in  length  or  depth  westward 
between  two  parallel  lines  at  right  angles  of  said  '  X"  Street  one 
hundred   (100')   feet   to   a   certain   three   feet  wide   alley,   and 
extending  northward  from  "X"  Street  to  "Z"  Street.    Being  the 
same  premises  which  Andrew  Brown  and  wife  by  indenture  bear- 
ing date  the  second  day  of  January,  A.  D.  191 2,  and  recorded 
in  the  Office  for  the  Recording  of  Deeds  in  Deed  Book  IV.  S.  V ., 
No.   1362,  page  45,  etc.,  granted  and  conveyed  unto   the  said 
John    Smith    in    fee.      Together    with    the    right,    liberty    and 
privilege  of  the  aforesaid  alley  as  and  for  a  passageway  and 
water-course  hereafter  forever.     And  Together  with  all  and 
singular  the  ways,  means,  rights,  privileges,  remedies,  right  and 
power  of  entry,  distress  and  of  re-entry,  and  all  other  the  cov- 
enants, ways,  means  and  remedies  for  recovering  payment  of  the 
aforesaid  yearly  ground  rent  and  the  arrearages  thereof,  and 
all  and  singular  the  other  rights  incidents  and   appurtenances 
whatsoever    thereunto    belonging,    and   the    reversions    and    re- 
mainders thereof;  and  all  the  estate,  right,  title,  interest,  prop- 
erty,  claim   and    demand   whatsoever,   of    him,   the   said   John 
Smith,  either  in  law  or  equity,  as  well  of,  in,  to  and  out  of  the 
said  yearly  rent  or  sum  hereby  granted,  as  also  of,  in  and  to  the 
aforesaid  lot  or  piece  of  ground,  with  the  appurtenances,  for  and 
out  of  which  the  said  rent  issuing  and  payable :    To  have  and  to 
hold  the  said  yearly  ground  rent  with  the  appurtenances,  here- 
ditaments and  premises  hereby  granted,  or  mentioned  and  in- 
tended so  to  be,  with  the  rights,  remedies,  incidents  and  ap- 
purtenances, unto  the  said  Rudolph  Long,  his  heirs,  executors, 
administrators  and  assigns,  to  and  for  the  only  proper  use  and  be- 
hoof of  the  said  Rudolph  Long,  his  heirs,  executors,  administra- 
tors and  assigns   forever.     And  the  said  John  Smith  does  by 
these    presents,    covenant,   grant   and   agree,    to    and   with   the 
said   Rudolph   Long,   his   heirs,    executors,    administrators   and 
assigns,   that   he,   the   said   John   Smith,   all   and   singular    the 
hereditaments   and  premises   hereby  granted,   or  mentioned   or 
intended  so  to  be,  with  the  rights,  remedies,  incidents  and  ap- 
purtenances, unto  the  said  Rudolph  Long,  his  heirs,  executors, 
administrators   and   assigns,   against   the   said  John   Smith,   his 


Ground  Rents.  155 

heirs,  executors,  administrators  and  assigns,  and  against  all  and 
every  other  person  or  persons  whomsoever  lawfully  claiming  or 
to  claim,  by,  from  or  under  him,  them  or  any  of  them,  shall  and 
will  warrant  and  forever  defend  by  these  presents. 

In  witness  whereof,  the  said  parties  to  these  presents  have 
hereunto  interchangeably  set  their  hands  and  seals.  Dated  the 
day  and  year  first  above  written. 

Sealed    and    delivered    in    the 
presence  of  us: 

John  Doe.  John  Smith.     (Seal.) 

Richard  Roe. 

Received,  the  day  of  the  date  of  the  above  indenture,  of  the 
above-named  Rudolph  Long  the  sum  of  one  thoxisand  ($1,- 
000.00)  dollars,  being  the  full  consideration  money  above  men- 
tioned. 


! 


Witness  at  signing: 

Richard  Roe.    }  John  Smith. 


State  of  Pennsylvania,    | 
County  of  Philadelphia,  j  ss: 

On  the  first  day  of  August,  Anno  Domini  191^,  before  me, 
the  subscriber,  a  notary  public  for  the  Commonwealth  of  Penn- 
sylvania, residing  in  the  City  of  Philadelphia,  personally  appeared 
the  above-named  John  Smith,  and  in  due  form  of  law  acknowl- 
edged the  above  indenture  to  be  his  act  and  deed,  and  desired  the 
same  might  be  recorded  as  such. 

Witness  my  hand  and  notarial  seal  the  day  and  year  aforesaid. 

Richard  Roe, 
Notary  Public. 
117.     Discharge  by  Merger. 

If  the  owner  of  the  ground  rent  subsequently  acquires  title  to 
the  land  out  of  which  the  rent  issues,  the  ground  rent  is  said 
to  be  merged  and  is  extinguished.  By  operation  of  law,  when  the 
right  to  the  land  and  the  right  to  the  rent  are  united  in  the 
same  person,  the  rent  becomes  extinct  (Charnley  v.  Hansbury, 
13  Pa.  16).  But  this  does  not  happen  where  a  mortgage  inter- 
venes which  was  given  by  a  prior  owner  of  the  land  (Cook  v. 
Brightly,  46  Pa.  439).  And  it  must,  also,  be  the  same  person 
who  holds  the  fee,  so  where  a  ground  rent  of  a  wife's  real  estate 
was  acquired  by  the  husband,  it  was  held  not  to  have  merged  even 
after  the  wife  died  and  the  husband  became  possessed  of  her  real 
estate  by  curtesy  (Pa.  Co.  v.  Singheiser,  235  Pa.  241). 


156  Conveyancing  in   Pennsylvania. 

118.  Discharge  by  Order  of  Court  After  Lapse  of  Twenty-one  Years. 
Under  the  Act  of  April  27,  1855,  P.  L.  368,  "where  no  pay- 
ment claim  or  demand  shall  have  been  made  on  account,  of  or 
for  any  ground  rent,  annuity  or  other  charge  upon  real  estate  for 
twenty-one  years,  or  no  declaration  or  acknowledgment  of  the 
existence  thereof  shall  have  been  made  within  that  period  by  the 
owner  of  the  premises,  subject  to  such  ground  rent,  annuity  or 
charge,  a  release  shall  be  presumed.  Appropriate  proceedings 
exist  whereby  the  court  will  order  an  extinguishment  on  the 
record  of  a  ground  rent  barred  by  this  act. 

119.  Discharge  of  Ground  Bent  on  Judicial  Sale. 

As  in  the  case  of  a  mortgage,  if  there  is  no  lien  prior  to  the 
ground  rent,  a  sale  on  any  subsequent  lien  will  not  discharge 
the  ground  rent.  But  a  sheriff's  sale  will  discharge  a  ground  rent 
if  there  should  be  a  judgment  lien  against  premises  prior  to  the 
ground  rent.  The  rule  laid  down  in  Par.  100  as  to  discharge  of 
mortgages  applies  equally  to  ground  rents. 

SECTION  v. 

120.  Mortgages  and  Ground  Rents  Compared. 

Mr.  Fallon  (Pa.  Law  of  Conveyancing,  on  page  459),  from 
the  viewpoint  of  an  investor,  has  compared  the  respective  ad- 
vantages of  a  ground  rent  and  mortgage  and  a  review  of  his 
comparison  may  be  of  some  benefit. 

First:  A  ground  rent  is  real  estate  and  is  descendable  to  the 
heir,  subject  to  curtesy  and  dower  right  to  the  real  estate.  On 
the  other  hand,  a  mortgage  is  personal  property  and  goes  to  the 
administrator.  A  ground  rent  being  real  estate  is,  of  course, 
subject  to  the  lien  of  judgment,  may  even  be  mortgaged;  but  a 
mortgage  is  not  so  subject  to  lien  of  judgment,  but  may  only  be 
attached  on  an  attachment  execution  issued  for  that  purpose. 

Second:  The  holder  of  a  ground  rent  can  never  demand  the 
payment  of  the  principal  (unless  specified  to  the  contrary),  so 
that  if  the  property  should  depreciate  in  value,  he  cannot  protect 
his  capital  by  withdrawing  it ;  mortgages,  on  the  other  hand,  are 
made  for  a  fixed  period,  usually  three  to  five  years,  and  if  the 
holder  at  the  end  of  that  time  is  not  satisfied  with  his  invest- 
ment, he  can  call  in  the  principal. 


Ground  Rents.  157 

Third:  Should  it  become  necessary  to  sell  the  property  for 
the  non-payment  of  rent,  the  holder  thereof  is  at  the  expense  of 
the  sale,  although  in  recent  years  many  deeds  contain  a  provision 
for  an  attorney's  fee  (See  Form,  page  144).  The  recovery  of 
the  cost  upon  the  ground  rents  not  exceeding  $100.00  is,  how- 
ever, secured  by  the  Act  of  April  8,  1857,  P.  L.  175.  Mortgages, 
on  the  other  hand,  invariably  provide  for  an  attorney's  fee,  in  case 
foreclosure  is  necessary  and  should  the  property  not  realize 
sufficient  to  pay  off  the  debt,  interest  and  costs,  the  holder  can 
resort  to  the  bond  accompanying  the  mortgage  for  the  balance  due. 

Fourth :  The  cost  of  satisfying  a  mortgage  is  small  compared 
to  the  extinguishment  of  a  ground  rent,  which,  it  will  be  re- 
membered, must  be  done  by  a  deed,  carefully  drawn,  executed 
and  recorded. 

Fifth :  Ground  rents,  however,  are  usually  not  taxable,  unless 
the  deeds  creating  them  do  not  contain  the  usual  clause  of  cov- 
enant to  pay  all  taxes  on  the  rent  and  on  the  land.  Mortgages, 
however,  are  subject  to  a  state  tax  of  four  mills  on  a  dollar, 
but  these  four  mills  are  usually  added  in  the  mortgage  to  the  rate 
of  interest,  hence  for  a  five  per  cent,  mortgage  the  rate  is  fixed 
at  5  4-10  per  cent. 


CHAPTER  VIII. 

Recording  oe  Deeds  and  Other  Instruments  of  Convey- 
ancing. 

Page.  Page. 

121.  Recording.     Definition  126.  Time  within  which   Mort- 

Origin   158  gages      must     be     Re- 

122.  Object     and     Purpose     of  corded  161 

Recording 15a       127.  Defective    Recording    and 

123.  Recording  is  Notice  to  the  Indexing.     Result 

World   159  Thereof  162 

124.  Effect    of    not    Recording  128.  Recording   of    Forged    In- 

Deeds 159  struments  163 

125.  Time  within  which  Deeds  129.  Method  of  Recording 164 

must  be  Recorded  160      130.  What  Instruments  may  be 

Recorded    164 

Recording  oe  Deeds. 

121.     Recording  of  Deeds.     Definition.     Origin. 

By  recording  of  deeds  we  mean  the  copying  of  the  deeds  by 
an  official  duly  designated  by  the  state,  into  a  book  which  is  pre- 
served as  a  public  record.  In  some  states  this  is  called  register- 
ing of  deeds,  and  the  official  who  copies  the  deed  is  called  the 
"register  of  deeds."  In  Pennsylvania,  this  act  is  called  recording 
of  deeds,  and  the  official  is  known  as  the  recorder  of  deeds. 

In  early  English  history  not  all  kinds  of  deeds  were  required 
to  be  recorded,  with  the  result  that  the  recording  was  haphazard 
and  of  little  use  in  protecting  innocent  purchasers.  William 
Penn,  with  the  object  lesson  of  the  inefficient  recording  system 
of  England  before  him,  determined  when  he  embarked  for  his 
domain,  Pennsylvania,  to  establish  among  the  first  things  an 
efficient  recording  system  so  as  to  place  Pennsylvania  titles  on 
a  solid  foundation.  Accordingly,  he  caused  to  be  passed  various 
recording  acts  which  were  later  revised  and  consolidated  by  the 
Act  of  May  28,  1715  (1  Sm.  L.  94)-  This  act  provided  a  system 
of  recording  which  has  persisted  in  Pennsylvania  with  but  few 
changes,  to  the  present  time.  Later,  by  the  Act  of  March  18. 
1775,  1  Sm.  L.  442,  the  recording  of  all  deeds  was  made  obliga- 
tory. 

158 


Recording  of  Deeds.  159 

122.  Object  and  Purpose  of  Recording. 

The  object  of  recording  deeds  as  stated  by  the  Supreme 
Court  of  Pennsylvania  (Salter  v.  Reed,  15  Pa.  260)  is  "to  pro- 
tect purchasers  against  fraud  and  possible  loss  of  evidence  of 
title  by  providing  books  wherein  their  deeds  might  be  recorded 
and  to  which  interested  parties  might  have  access  and  enabled 
to  ascertain  the  condition  of  the  title  before  lending  money  on 
it."  In  order  to  fully  accomplish  this  purpose  the  law  also  pro- 
vides that  exemplified  copies  from  the  record,  i.  e.,  copies  made 
and  certified  by  the  recorder  of  deeds,  of  all  instruments  au- 
thorized by  law  to  be  recorded,  may  be  evidence  in  court  without 
formally  proving  execution  (Act  of  May  28,  171 5,  1  Sm.  L. 
94).  So,  if  the  original  deed  is  lost  an  exemplified  copy  of  the 
record  can  be  received  as  evidence  of  the  contents  of  said  deed, 
and  this  even  without  proving  its  loss  (Curry  v.  Raymond,  28 
Pa.  144). 

123.  Recording  is  Notice  to  World. 

The  recording  of  a  deed  gives  notice  of  its  existence  to  the 
world.  Notice  is  of  two  kinds,  actual  notice  which,  of  course, 
means  express  or  direct  notice,  and  constructive  notice,  which 
means  such  notice  as  is  assumed  or  implied.  Thus,  when  the 
recording  act  says  that  an  instrument  recorded  according  to  the 
terms  of  the  act  shall  be  constructive  notice,  it  means,  that  from 
the  mere  recording  everyone  is  assumed  to  have  notice  of  its 
existence,  although  in  point  of  fact  no  one  would  know  of  its 
existence  unless  present  at  its  creation  or  had  examined  the 
record. 

124.  Effect  of  Not  Recording  Deeds. 

In  order  to  make  the  recording  acts  effective  for  the  protection 
of  people  against  frauds,  the  law  must  visit  some  disadvantage 
in  the  nature  of  a  penalty  on  such  who  do  not  record  their  deeds 
and  mortgages.  This  is  done  by  the  recording  acts,  which  pro- 
vide that  if  a  deed  is  not  recorded  it  shall  be  void  as  against  a 
subsequent  purchaser  or  mortgagee  for  a  valuable  consideration 
without  notice.  Observe,  the  non-recording  of  a  deed  does 
not  make  it  totally  void  in  Pennsylvania,  but  it  makes  it  void  as 
against  a  subsequent  purchaser  who  buys  the  same  land,  gives 
value  for  it  and  has  no  actual  notice  of  the  existence  of  the 
prior  deed.     Thus,  suppose  A  executes  and  delivers  a  deed  to 


160  Conveyancing   in   Pennsylvania. 

B,  who  fails  to  record  his  deed;  A  now  afterwards  makes  an- 
other deed  for  the  same  land  to  C,  who  pays  value  for  it;  as 
against  A,  B's  deed  is  still  good,  but  as  against  C,  B's  deed  is 
void  unless  he  can  prove  either  that  C  gave  no  value  for  it  or 
actually  knew  or  should  have  known  of  the  prior  transaction.  In 
this  way  the  law  protects  the  innocent  purchaser  without  en- 
abling the  grantor  to  derive  any  benefit  from  the  non-recording 
of  deed.  The  law  desires  not  so  much  to  punish  B  as  to  pro- 
tect C. 

125.     Time  Within  Which  Deeds  Must  be  Recorded. 

Deeds  must  be  recorded  within  ninety  days  from  their  date  of 
execution  (Act  of  May  19,  1893,  P.  L.  108)  in  order  to  be  en- 
titled to  priority  from  the  time  of  execution.  Before  the  Act  of 
May  19,  1893,  six  months  was  the  time  allowed,  although  this  act 
reduces  the  time  to  ninety  days  for  deeds  executed  within  this 
Commonwealth.  If  the  deed  be  executed  outside  of  the  State, 
six  months  are  allowed  in  which  to  record  it.  When  a  deed  is 
not  recorded  within  the  statutory  period  it  is  void  against  sub- 
sequent purchasers  and  mortgagees  of  the  same  land  for  value 
without  notice,  and  nothing  can  save  it,  but  getting  it  on  record 
before  a  second  purchaser  records  his  deed.  Thus,  in  a  decision 
(Fries  v.  Null,  154  Pa.  573),  before  the  Act  of  May  19,  1893,  it 
was  held  that  a  deed  recorded  after  the  statutory  period  has 
nevertheless  priority  over  a  later  deed  recorded  subsequently, 
though  within  the  statutory  period.  The  effect  of  this  decision, 
therefore,  was  that  recording  a  deed  at  any  time  within  the  ninety 
days  protects  it  against  subsequent  deeds  but  not  against  prior 
unrecorded  deeds.  It  behooves  a  man,  therefore,  to  record  his 
deed  as  soon  as  it  is  executed,  lest  some  prior  unrecorded  deed 
beat  him  to  the  record.  Whether  this  rule,  which  was  announced 
before  the  adoption  of  the  act  of  1893,  has  been  changed  by  that 
act  is  a  question.  Mr.  Fallon  (Fallon  on  Conveyancing,  Par. 
278)  thinks  it  is  not  changed  because  of  a  statement  by  the  Su- 
preme Court  in  Davey  v.  Ruffell,  162  Pa.  443,  that  "The  rule  as  it 
stood  under  the  old  law  is  the  rule  under  the  act  of  1893,  except 
as  to  the  length  of  time  allowed  for  recording."  However,  on 
the  other  hand,  it  must  be  remembered  that  the  act  of  May  19, 
1893,  omits  this  clause  contained  in  the  act  of  1775,  viz:  "un- 
less such  (prior)  deed  or  conveyance  be  recorded  as  aforesaid, 
before  the  proving  and  recording  of  the  deed  or  conveyance 


Recording  oe  Deeds.  161 

under  which  a  subsequent  purchaser  or  mortgagee  shall  claim." 
This  clause  in  the  act  of  1775  immediately  followed  the  clause 
that  provided  that  a  prior  unrecorded  deed  should  be  fraudulent 
and  void  as  against  a  subsequent  purchaser  or  mortgagee  for 
valuable  consideration.  Since  the  decision  of  Fries  v.  Null,  154 
Pa.  573,  turned  directly  upon  this  clause  which  is  omitted  in  the 
act  of  1893,  it  would  seem  that  the  law  as  there  stated  has  been 
changed  and  that  a  subsequent  purchaser  or  mortgagee  would 
now  have  the  full  ninety  days  in  which  to  record.  Still,  the  only 
recent  case  on  the  subject,  Gillespie  v.  Buffalo  R.  &  P.  Rwy.  Co., 
204  Pa.  107  (1902),  reaffirms  with  approval  the  doctrine  of 
Fries  v.  Null,  supra,  but  even  this  recent  case  cannot  be  regarded 
as  conclusively  settling  the  question,  since  the  facts  of  case 
show  that  the  deeds  there  in  question  were  recorded  in  1883,  or 
ten  years  before  the  adoption  of  the  act  of  1893.  Consequently, 
until  the  question  is  finally  settled  good  practice  requires  us  to 
observe  the  rule  of  Fries  v.  Null,  154  Pa.  573,  and  to  see  to  it 
that  our  deeds  are  recorded  as  soon  as  possible  after  execution 
lest  they  be  defeated  by  the  prior  recording  of  an  unrecorded 
prior  deed. 

126.     Time  Within  Which  Mortgages  Must  be  Recorded. 

All  mortgages  except  purchase  money  mortgages  should  be 
recorded  immediately  after  execution,  if  they  are  to  be  a  lien 
from  that  time.  The  Act  of  March  28,  1820  (7  Sm.  L.  303), 
sets  forth  in  effect  that  all  mortgages  and  defeasible  deeds  in  the 
nature  of  mortgages  should  have  priority  according  to  the  date 
of  recording  the  same  without  regard  to  the  time  of  execution. 
And  the  recorder  was  required  to  indorse  the  time  upon  the 
mortgages  or  defeasible  deeds  when  left  for  record  and  to 
number  the  same  according  to  the  time  when  left  for  record, 
and  if  two  or  more  were  left  011  the  same  day  they  should 
have  priority,  according  to  the  time  they  were  left  for  record, 
and  no  mortgages  or  defeasible  deeds  should  be  a  lien  until  left 
for  record.  The  meaning  of  this  act  requires  but  little  explana- 
tion, and  by  it  mortgages  except  purchase  money  mortgages,  be- 
come a  lien  only  from  the  time  of  recording.  Title  insurance 
companies  have  adopted  a  method  of  requiring  the  mortgages 
they  are  asked  to  insure  to  be  recorded  for  two  days  prior  to 
settlement.  The  searches  are  then  brought  down  to  cover  these 
two  days  so  as  to  disclose  the  fact  if  any  other  mortgage  or 


162  Conveyancing  in   Pennsylvania. 

lien  has  crept  in  ahead  of  the  one  they  insure.  While  under 
this  act  of  1820  an  unrecorded  mortgage  is  not  a  lien  as  to 
creditors  or  subsequent  mortgagees  or  purchasers,  it  is  neverthe- 
less a  good  lien  as  against  the  mortgagor.  This  act  further  pro- 
vides that  no  mortgage  given  for  the  purchase  money  of  the  land 
should  be  affected  by  the  act  if  the  same  be  recorded  within 
sixty  days.  And  if  so  recorded  within  the  sixty  days  it  becomes 
a  lien  from  date  of  its  execution.  But  as  set  forth  in  paragraph 
88  if  two  purchase  money  mortgages  executed  on  the  same  day  are 
recorded  within  the  sixty  days,  both  are  equal  in  lien  unless  one  be 
made  expressly  subject  to  the  other  (see  Paragraph  92). 

127.     Defective  Recording-  and  Indexing-.     Result  Thereof. 

For  recording  to  be  effective  it  must  be  properly  done.  The 
instrument  must  not  only  be  correctly  transcribed  in  the  proper 
book,  but  must  be  correctly  indexed  as  well.  The  rule  af  law 
governing  the  question  as  to  what  book  an  instrument  should  be 
recorded  has  been  stated  as  follows :  "Where  certain  instruments 
of  writing  are  not  required  by  law  to  be  recorded  in  a  particular 
book,  they  may  be  recorded  in  any  book  kept  by  the  recorder" 
(Glading  v.  Frick,  88  Pa.  460).  Deeds  and  mortgages  are  re- 
quired to  be  indexed  in  the  deed  book  and  mortgage  book  re- 
spectively. A  list  of  all  instruments  which  may  be  recorded  and 
the  acts  of  assembly  relating  thereto,  will  be  found  in  paragraph 
130  (infra).  Before  the  Act  of  March  18,  1875,  P.  L.  32,  a  gen- 
eral index  was  not  required  by  law  and  it  was  then  held  that 
"where  an  instrument  was  properly  recorded  but  not  indexed  in 
a  general  index  it  was  nevertheless  effective,  since  the  only  index 
then  required  by  law  to  be  kept  was  index  for  each  book"  (Schell 
v.  Stein,  76  Pa.  398).  The  Act  of  March  18,  1875,  P.  L.  32> 
however,  requires  the  recorder  to  keep  two  general  indexes,  one 
for  deeds  and  one  for  mortgages,  and  makes  it  his  duty  to  index 
in  the  proper  index  every  deed  and  mortgage  left  at  his  office  for 
record.  "Since  this  act,  therefor,  deeds  and  mortgages  must  be 
both  indexed  and  transcribed  properly,  and  failure  to  do  either  is 
such  defective  recording  as  to  make  it  a  nullity  as  to  subsequent 
purchasers  or  mortgagees"  (Pyles  v.  Brown,  189  Pa.  164). 

Not  only  does  omission  to  record  and  index  constitute  a  de- 
fective record,  but  failure  to  index  and  transcribe  correctly  is 
equally  defective.  Thus  where  a  mortgage  was  indexed  and  re- 
corded under  the  name  S.  J.  Marshall  instead  of  L.  J.  Marshall  the 


Recording  of  Deeds.  163 

Supreme  Court  said  (Prouty  v.  Marshall,  225  Pa.  574  [1909])  : 
"In  this  case  the  mortgage  was  neither  recorded  properly  nor 
indexed  properly;  both  recording  and  indexing  were  alike  de- 
fective and  each  of  the  defects  was  fatal  to  the  claim  of  the 
mortgagee."  As  a  result  of  this  development  of  the  law  a  mort- 
gagee or  grantee  ought  to  do  more  than  merely  leave  the  instru- 
ment for  record,  he  ought  to  examine  the  record  and  see  that 
no  mistake  has  been  made  by  the  recorder,  either  in  indexing  or 
transcribing.  Says  the  Supreme  Court  in  the  same  case  of 
Prouty  v.  Marshall,  225  Pa.  570:  "The  chief  object  to  be  ob- 
tained, by  recording  and  indexing  an  instalment,  affecting  real 
estate,  is  to  give  notice  of  the  incumbrance.  It  is  therefore  the 
duty  of  a  person  offering  an  instrument  for  record  to  see  that  it 
is  properly  recorded  and  properly  indexed.  If  he  fails  to  do  so, 
he  cannot  shift  the  consequence  upon  an  innocent  purchaser." 

The  Recorder  who  makes  a  mistake  in  indexing  or  recording 
an  instrument  is  liable  for  damages  resulting  therefrom  and  suit 
may  be  brought  on  his  official  bond  (Act  of  March  18,  1875,  P- 
L.  32,  Sec.  2).  To  a  certain  extent  this  affords  protection  to  a 
grantee  or  mortgagee  whose  instrument  was  improperly  indexed, 
but  since  action  must  be  commenced  within  seven  years  from  the 
time  the  mistake  was  made  (Commonwealth  v.  Donnelly  Estate, 
33  Pa.  C.  C.  601),  the  only  complete  protection  is  to  follow  the 
advice  of  the  Supreme  Court  and  personally  examine  both  index 
and  record  to  see  that  no  mistake  is  made. 

128.    Recording  of  Forged  Instruments. 

The  recording  of  an  instrument  gives  it  no  greater  validity  as 
far  as  execution  is  concerned  than  it  had  before.  Thus  where  a 
forged  deed  was  recorded  one  who  buys  relying  on  the  record 
takes  no  title.  As  said  by  the  Supreme  Court  (Reck  v.  Clapp,  1 
Pennypacker  344)  :  "Of  course  a  purchaser  who  examines  the 
records  is  protected  by  them  as  far  as  they  can  protect  him,  but 
he  necessarily  takes  the  risk  of  having  the  actual  state  of  title 
correspond  to  that  which  appears  of  record."  Reliance  on  a 
forged  deed,  recorded  on  an  absolutely  false  certificate  of  ac- 
knowledgment may  bring  loss  on  him  who  so  relies,  but  neither 
such  deed  nor  such  certificate  appended  to  it  can  ever  effect  the 
owner  of  the  property  (Smith  v.  Markland,  223  Pa.  605). 


164  Conveyancing   in   Pennsylvania. 

129.  Method  of  Becording. 

The  method  of  recording  a  deed  or  other  instrument  is  to  take 
or  send  the  instrument  to  the  recorder  of  deeds  office.  The  re- 
cording fee  is  then  paid,  and  receipt  for  the  instrument  is  issued 
by  the  recorder  or  his  clerk.  The  instrument  is  left  there  and 
when  copied  into  the  book  and  properly  indexed  is  returned  to 
the  owner  upon  surrender  of  the  receipt.  The  instrument  is 
stamped  recorded,  the  moment  it  is  received  by  the  recorder.  Its 
recording  dates  from  the  time  it  is  left  with  the  recorder  and  not 
from  the  time  it  is  copied  into  the  book. 

130.  What  Other  Instruments  May  Be  Recorded. 

From  time  to  time  the  legislature  has  passed  acts  providing 
that  other  instruments  besides  deeds  and  mortgages  may  be  re- 
corded and  when  they  are  recorded  they  have  all  the  advantages 
incidents  and  force  of  a  public  record  such  as  being  constructive 
notice  to  the  world,  receivable  in  evidence  without  formal  proof, 
etc. 

The  following  instruments  may  be  recorded : 

Assignment  of  mortgages  and  letters  of  Attorney  to  satisfy 
mortgages,  Act  of  April  9,  1849,  P.  L.  525,  Sec.  14. 

Assignments  for  benefit  of  creditors,  Act  of  June  4,  1901, 
Sec.  10,  P.  L.  404. 

Bankruptcy  certificates,  Act  of  May  2,  1907,  P.  L.  159.  To  be 
recorded  in  deed  books  and  indexed  as  conveyances.  The  bank- 
rupt as  grantor  and  receiver  or  trustee  (if  any)  as  grantee. 

Coroners'  deeds,  Act  of  March  14,  1846,  P.  L.  124,  Sec.  1. 

County  commissioners'  deeds,  Act  of  April  5,  1849,  P-  L.  344, 
Sec.  2. 

Deeds  of  sheriffs,  coroners,  marshals  and  treasurers,  made 
in  pursuance  of  decree  of  court,  Act  of  March  14,  1846,  P.  L. 
124,  Sec.  1. 

Deeds  of  trust  where  lands  and  tenements  are  conveyed,  Act 
of  May  6,  1854,  P.  L.  603,  Sec.  1. 

Discharges  of  commissioned  or  non-commissioned  officers  and 
privates,  Act  of  April  8,  1868,  P.  L.  73,  Sec.  1. 

Dower,  releases  of,  Act  of  May  17,  1866,  P.  L.  1085. 

Election  of  husband  or  wife  to  take  either  under  will  or  in- 
testate laws,  Act  of  April  21,  191 I,  P.  L.  79. 


Recording  of  Deeds.  165 

Exemplification  of  deed  embracing  land  in  two  counties  re- 
corded in  one  county  may  be  recorded  in  the  other  county  in 
which  the  land  lies,  Act  of  January  26,  1870,  P.  L.  13,  Sec.  I. 

Grant,  bargain  and  sale,  release  or  deed  of  conveyance  or 
assurance  of  any  lands,  tenements  or  hereditaments,  Act  of 
December  14,  1854,  P.  L.  (1855)  724,  Sec.  3. 

Letters  of  attorney  to  satisfy  mortgages,  Act  of  April  9,  1849. 
P.  L.  525,  Sec.  14. 

Letters  of  attorney  authorizing  contracts,  adjustments  of  ac- 
counts, sale  of  stocks  and  personal  estate,  receipt  of  moneys,  dis- 
charges and  acquittances  of  legacies  or  distributive  shares,  when 
executed  out  of  state,  Act  of  December  14,  1854,  P.  L.  724 
(1855),  Sec.  1.  See  also  Act  of  May  17,  1866,  P.  L.  1085.  Ex- 
tended to  affidavits  before  any  officer  of  any  state  authorized  to 
take  affidavits,  Act  of  August  10,  1864,  P.  L.  962. 

Leases  for  more  than  twenty-one  years,  Act  of  March  18,  1775  ; 
1  Smith's  Laws  422,  Sec.  3. 

Marriage  articles  whereby  title  to  land  is  affected  are  within 
the  recording  act,  Lessee  of  Foster  v.  Whitehill,  2  Yeates  259. 

Married  women.  All  releases,  contracts,  letters  of  attorney 
and  other  instruments  of  writing  which  a  married  woman  is  or 
shall  be  authorized  by  law  to  make  and  execute  without  the 
joinder  of  her  husband,  and  which  have  been  or  shall  hereafter 
be  so  executed  by  her,  may  be  recorded  in  the  office  for  recording 
deeds  in  the  proper  county  if  the  same  shall  have  been  acknowl- 
edged by  her  without  her  husband  joining,  or  her  signature 
thereto  shall  have  been  duly  proved,  Act  of  May  25,  1897,  P.  L. 
83,  Sec.  1. 

Map  or  plan  of  lots,  where  one  or  all  the  owners  have  died, 
may,  after  approval  by  the  court,  be  recorded.  The  act  does  not 
affect  adversely  persons  not  parties  to  the  proceedings,  Act  of 
June  6,  1893,  P.  L.  329. 

Map  or  plan  of  subdivision  of  lands  into  building  lots,  making 
it  the  duty  of  owner  to  record,  Act  of  April  28,  1899,  P.  L.  123. 

Mortgages  or  defeasible  deeds  in  the  nature  thereof,  Act  of 
May  28,  1715;  1  Smith's  Laws  94,  Sec.  8.  This  section  relates 
exclusively  to  mortgages  and  defeasible  deeds,  Burke  v.  Allen, 
3  Yeates  351. 

Marshals'  deeds,  Act  of  March  14,  1846,  P.  L.  124,  Sec.  1. 

Ordinance  of  any  municipality  vacating  streets,  lanes,  alleys, 
Act  of  May  23,  1907,  P.  L.  223. 


166  Conveyancing  in   Pennsylvania. 

Patents  granted  by  the  commonwealth,  Act  of  March  14,  1846, 
P.  L.  124,  Sec.  1.  This  act  is  constitutional,  Foster  v.  Gray,  22 
Pa.  9. 

Powers  of  attorney  to  make  sale,  conveyance,  mortgage  or 
transfer  of  lands  and  tenements,  Act  of  December  14,  1854,  P.  L. 
(1855)  724,  Sec.  3. 

Receipts  for  taxes  on  unseated  lands  duly  acknowledged,  Act 
of  March  9,  1847,  P-  L.  278,  Sec.  1. 

Receipts  for  money  paid  for  redemption  of  unseated  lands, 
Act  of  April  25,  1850,  P.  L.  569,  Sec.  33. 

Receipts  for  instalments  of  mortgages,  Act  of  March  31,  1823, 
P.  L.  216,  Sec.  2. 

Release  of  recognizance  or  dower,  Act  of  May  17,  1866,  1085 
Sec.  1. 

Releases  of  mortgage  were  authorized  to  be  given  by  the  Act 
of  April  2,  1822,  7  Smith's  Laws  551,  Sec.  1,  but  apparently  no 
provision  was  made  for  recording  them.  See  Act  of  December 
14,  1854,  P.  L.  724,  Sec.  3.  The  act  was  intended  for  the  benefit 
of  terre-tenants  or  purchasers  from  the  mortgagor  and  was  not 
intended  to  interfere  with  the  relative  equities  of  different  pur- 
chasers, Mevey's  Appeal,  4  Pa.  80. 

Release  or  other  instrument  in  writing  being  evidence  of  the 
payment  or  satisfaction  of  any  legacy  charged  on  lands  and  re- 
leases to  any  executor,  administrator,  assignee,  trustee  or  guar- 
dian duly  executed  before  two  witnesses  and  acknowledged,  Act 
of  April  15,  1828,  P.  L.  490,  Sec.  1.  See  also  Act  of  May  17, 
1866,  P.  L.  1085,  Sec.  1.  Extended  to  releases  executed  out  of 
state  by  Act  of  April  26th,  1850,  P.  L.  1169,  Sec.  24.  If  not 
signed  before  two  witnesses  the  release  is  not  within  the  pro- 
vision of  the  act,  Hellman  v.  Hellman,  4  Rawle  440,  but  the  Act 
of  April  26,  1854,  P.  L.  501,  Sec.  1,  dispenses  with  seals  or  wit- 
nesses. Releases  of  warranties,  covenants  and  liabilities  con- 
tained in  a  deed  are  within  the  provisions  of  the  act,  Susque- 
hanna Coal  Co.  v.  Quick,  61  Pa.  339.  Release  not  properly  ac- 
knowledged is  not  entitled  to  record,  Powell's  Appeal,  98  Pa.  403. 

Sheriff's  deeds  to  be  recorded  in  prothonotary's  office,  Act  of 
May  24,  1893,  P.  L.  127,  Sec.  1,  may  be  recorded  in  recorder's 
office,  Act  of  March  14,  1846,  P.  L.  124,  Sec.  1..  But  now,  by 
Act  of  April  22,  1905,  P.  L.  265,  Sees.  4,  5,  6,  sheriff's  deeds  are 
required  to  be  recorded  in  the  Recorder  of  Deeds'  Office,  and 
indexed  in  the  deed  index  with  the  name  of  the  purchaser  as 


Recording  of  Deeds.  167 

grantee  and  with  the  name  of  the  defendant  or  party  whose  title 
was  divested  by  the  sale,  as  grantor.  Sheriff's  deeds  need  no 
longer  be  recorded  in  the  Prothonotary's  Office;  the  recorder  of 
deeds  must,  however,  give  the  prothonotary  a  certificate  stating 
the  place  of  record,  which  the  prothonotary  must  note  on  the 
docket  of  the  case. 

Treasurer's  deeds,  Act  of  March  14,  1846,  P.  L.  124,  Sec.  1. 

Trustee  deeds  where  lands  and  tenements  are  conveyed,  Act 
of  May  6,  1854,  P.  L.  603,  Sec.  I. 


PART  IV. 

Acquisition  of  Title  by  Descent  and  Will.* 

CHAPTER  IX. 

Title  by  Descent. 


Page. 

SECTION    I. 
MODERN    LAWS    OF    DESCENT. 

131.  Descent.     Definition    168 

132.  Who  may  Inherit  by  De- 

scent       169 

133.  Lineal    Heirs   and    Collat- 

eral Heirs   170 

134.  Order  of  Inheritance.     In- 

testate  Laws  of  Penn- 
sylvania    171 

135.  Synopsis  of  Intestate  Laws  178 

136.  Whole     Blood    and     Half 

Blood  181 

137.  Advancements   181 

138.  Recital  of  Deed  of  one  in- 

heriting by  Descent   ...   181 


Page. 
SECTION   11. 

139.  Estate  by  Curtesy 182 

140.  Against   what   Land    Cur- 

tesy Attaches   183 

141.  How      Curtesy     may     be 

Barred 183 

SECTION  III. 

142.  Dower    184 

143.  Common  Law  Dower  still 

exists  during  Husband's 
Life    184 

144.  When    the    Dower    Right 

of  Wife  Vests 185 

145.  How     Dower     may     be 

Barred  185 

146.  Bankruptcy     of     Husband 

does  not  bar  Dower  . . .   186 


131.     Descent.     Definition. 

Descent  or  hereditary  succession  says  Mitchell  (Real  Estate 
and  Conveyancing  in  Pennsylvania),  is  the  title  whereby  a  man 
on  the  death  of  another,  acquires  his  estate  by  right  of  repre- 
sentation as  his  heir.  Blackstone  (2  Blk.  11),  states  that  the 
right  of  an  heir  to  inherit  was  not  a  natural  right,  but  a  civil  one 
established  by  long  custom.  But  whether  the  right  is  natural  or 
has  arisen  from  the  long  acquiescence  in  a  proper  custom  the 
right  of  a  decedent's  family  to  inherit  is  now  established  by  law. 

♦Title  acquired  by  will  is  really  a  subdivision  of  title  by  purchase  ac- 
cording to  Blackstone  (see  Par.  12),  but  since  the  reason  for  maintaining 
the  older  classifications  of  Blackstone  have  long  disappeared  and  as  it 
seemed  less  confusing  in  the  opinion  of  the  author,  to  consider  title  derived 
from  decedents  together,  title  by  will  has  been  made  a  subdivision  of  title 
by  descent  and  will  be  so  treated. 

168 


Title  by  Descent.  169 

At  common  law  real  estate  descended  to  heir  according  to  certain 
rules  known  as  cannons  of  descent.  They  are  set  forth  in  detail 
and  fully  explained  by  Blackstone  in  his  commentaries  (2  Blk. 
220).  They  have  been  so  altered  by  statute  that  it  would  only 
be  confusing  to  set  them  forth  here.  At  the  present  time  they 
are  chiefly  useful  for  the  courts  to  refer  to  in  construing  the 
modern  laws  of  descent  of  which  they  are  the  foundation.  The 
modern  rules  of  descent  are  provided  in  different  jurisdictions  by 
the  legislature  of  the  respective  states  and  differ  more  or  less  in 
each  jurisdiction.  These  modern  rules  of  descent  are  usually 
termed  the  intestate  laws. 

132.     Who  May  Inherit  by  Descent. 

In  general  the  intestate  laws  provide  that  only  some  one  re- 
lated to  the  decedent  by  consanguinity  that  is  blood  ties  shall  in- 
herit by  descent,  in  other  words  what  is  commonly  called  the 
"family"  of  the  decedent.  This  means  of  course  any  one  who  is 
related  by  blood  to  the  decedent  whatever  the  degree.  The 
widow  although  not  related  to  the  decedent  by  blood  is  under  the 
intestate  laws  of  practically  every  jurisdiction  also  allowed  to  in- 
herit to  some  extent.  The  relationship  between  husband  and 
wife  is  termed  affinity  as  distinguished  from  consanguinity  which 
means  relationship  by  blood.  So  also  a  man's  blood  relations 
are  called  his  kin  or  kindred  while  his  relationship  by  marriage 
should  be  properly  termed  his  connections  (Michell  285  Note). 

(a.)  Natural  Heirs. — By  natural  heirs  we  mean  of  course  all 
blood  relatives  such  as  children,  nephews,  nieces,  uncles,  aunts, 
cousins,  etc.  They  may  all  inherit  under  the  intestate  laws  in  the 
order  therein  set  forth  (See  Par.  134,  infra). 

(b.)  Illegitimates. — At  common  law  an  illegitimate  child  or  a 
bastard  child  was  one  born  out  of  wedlock  could  not  inherit  even 
from  his  mother,  unless  he  was  made  legitimate  by  act  of  Parlia- 
ment. In  no  other  way  could  he  be  made  legitimate,  not  even  by 
marriage  of  the  mother  and  father  after  his  birth.  In  Pennsyl- 
vania as  in  every  other  jurisdiction  the  harshness  of  this  com- 
mon law  rule  has  been  relaxed,  and  to-day  the  marriage  and  co- 
habitation of  the  father  and  mother  at  any  time  after  the  birth 
legitimates  the  child  (Act  of  May  14,  1857,  P.  L.  507). 

If  the  bastard  is  not  legitimated  by  marriage  of  his  parents  he 
is  nevertheless  now  permitted  to  inherit  in  Pennsylvania  from  his 
mother  (though  not  from  the  father)  by  Act  of  April  27,  1855, 


170  Conveyancing   in   Pennsylvania. 

P.  L.  368,  which  provides  ''Illegitimate  children  shall  take  and 
be  known  by  the  name  of  their  mother,  and  they  and  their  mother 
shall  respectively  have  capacity  to  take  and  inherit  from  each 
other,  personal  estate  as  next  of  kin  and  real  estate  as  heirs  in 
fee  simple ;  and  as  respects  said  real  and  personal  estates  so  taken 
and  inherited  to  transmit  the  same  according  to  the  intestate  laws 
of  this  state."  This  act  while  it  does  not  legitimate  bastards  gives 
them  the  capacity  to  inherit  from  their  mother  and  the  right  to 
take  the  mother's  name.  Later  by  various  acts  culminating  finally 
in  the  Act  of  July  10,  1901,  P.  L.  639,  the  illegitimate  child  was 
given  the  full  capacity  to  inherit  from  the  mother  personal  prop- 
erty to  the  same  extent  as  any  legitimate  child,  and  to  inherit  real 
estate  to  the  same  extent  as  any  legitimate  child  of  the  half  blood 
(see  Par.  136  hereinafter),  but  cautions  the  Act  of  March  26, 
1903,  P.  L.  70.  This  act  of  1901  only  means  to  give  the  illegiti- 
mate child  right  to  inherit  the  property  of  its  mother  and  not  of 
its  father. 

In  considering  the  rights  of  illegitimates  to  inherit  it  must  be 
remembered  that  the  laws  of  any  state  have  no  extra-territorial 
effect  and  that  the  law  of  that  state  governs  wherein  the  land 
lies. 

(c.)  Adopted  Children. — By  act  of  assembly  in  Pennsylvania 
proceedings  are  provided  whereby  children  may  be  adopted  (see 
Act  of  May  19,  1887,  P.  L.  125,  and  Act  of  April  22,  1905,  P.  L. 
298),  by  petition  to  the  court  of  the  proper  county,  and  see  the 
case  of  Evans'  Estate,  47  Pa.  Super.  196,  which  holds  that  adop- 
tion may  still  be  done  by  deed  if  properly  executed  and  recorded. 
Adults  may  also  be  adopted,  see  Act  of  June  1,  191 1,  P.  L.  539. 
When  properly  adopted  the  adopted  child  has  all  the  capacity  and 
right  to  inherit  both  real  and  personal  property  as  a  natural  born 
child  has.  In  other  words  by  act  (Act  of  April  13,  1887,  P.  L. 
53)  of  assembly  the  adopted  child  is  translated  into  a  natural  born 
child  as  far  as  the  right  to  inherit  is  concerned. 

133.     Lineal  Heirs  and  Collateral  Heirs. 

Heirs  inherit  as  the  law  provides  and  in  the  order  the  law  pro- 
vides. Heirs  are  divided  into  two  lines  or  classes.  Lineals  and 
collaterals.  Lineal  heirs  are  such  as  are  descended  one  from  the 
other  in  a  direct  line,  as  between  a  man  and  his  son  his  grandson, 
etc.  In  ascertaining  the  nearness  of  relationship  or  consan- 
guinity each  generation  counts  one  degree.    Thus  the  son  is  re- 


Title  by  Descent.  171 

moved  one  degree  from  his  father  and  two  from  his  grandfather. 
Collaterals  are  such  who  are  descended  from  the  same  stock  or 
common  ancestor,  but  do  not  descend  one  from  the  other.  Thus 
brothers  are  collaterals  because  they  are  not  descended  one  from 
the  other,  but  are  descended  from  the  same  common  ancestor,  to 
wit,  their  father.  So  also  cousins  are  collaterals.  In  computing 
the  nearness  of  relationship  or  consanguinity  the  method  now 
adopted  by  law  is  to  count  from  one  collateral  up  to  the  common 
ancestor  and  then  down  to  the  other.  This  is  known  as  the  civil 
law  method.  If  the  reader  desires  to  have  a  fuller  exposition  of 
the  method  of  computing  consanguinity  he  is  referred  to  the  2 
book  of  Blackstone's  Commentaries  Ch.  XIV,  p.  199,  where  a 
most  interesting,  full  and  plain  explanation  replete  with  illus- 
trations is  made  by  the  learned  author.  But  observe  that  the 
common  law  method  of  computing  the  degree  of  collaterals  is  no 
longer  used. 

134.    Intestate  Laws  of  Pennsylvania.     Order  of  Inheritance. 

The  order  in  which  heirs  shall  inherit  in  Pennsylvania  is  regu- 
lated by  the  Act  of  April  8,  1833,  P.  L.  315  and  its  supplements, 
commonly  called  the  intestate  laws.  These  acts  are  here  set  forth 
in  full  and  then  a  synopsis  of  them  added  so  that  they  may  be 
more  clearly  understood. 

Section  1.  The  real  and  personal  estate  of  a  decedent, 
whether  male  or  female,  remaining  after  payment  of  all  just 
debts  and  legal  charges,  which  shall  not  have  been  sold  or  dis- 
posed of  by  will,  or  otherwise  limited  by  marriage  settlement, 
shall  be  divided  and  enjoined  (enjoyed)  as  follows,  viz.: 

(1.)  Where  such  intestate  shall  leave  a  widow  and  issue,  the 
widow  shall  be  entitled  to  one-third  part  of  the  real  estate  for 
the  term  of  her  life,  and  to  one-third  part  of  the  personal  estate 
absolutely. 

(2.)  Where  such  intestate  shall  leave  a  widow  and  col- 
lateral heirs,  or  other  kindred,  but  no  issue,  such  widow  shall 
be  entitled  to  real  or  personal  property  estate,  or  both  to  the 
aggregate  value  of  Five  Thousand  ($5,000.00)  Dollars  in  addi- 
tion to  the  widow's  exemption  as  allowed  by  law ;  and  if  such 
estate  shall  exceed  in  value  the  sum  of  Five  Thousand  ($5,000.00) 
Dollars,  the  widow  shall  be  entitled  to  such  sum  of  Five  Thou- 
sand ($5,000.00)  Dollars  absolutely  to  be  chosen  by  her  from 
the  real  or  personal  estate  or  both  and  in  addition  there  to  shall 


172  Conveyancing  in   Pennsylvania. 

be  entitled  to  one-half  part  of  the  remaining  real  estate,  for  the 
term  of  her  life  and  to  one-half  part  of  the  remaining  personal 
estate  absolutely.*  Provided  that  the  procedure  for  appraising  the 
setting  apart  the  said  Five  Thousand  ($5,000.00)  Dollars  in 
value  of  the  property  shall  be  the  same  as  provided  in  Section 
five  of  the  Act  of  Assembly  approved  April  14,  1851,  relating  to 
widow's  exemptions.f 

(3.)  When  such  intestate  shall  leave  a  husband,  the  real 
estate  shall  descend  and  pass  as  now  provided  by  law,  sav- 
ing to  the  husband  his  right  as  tenant  by  the  curtesy  which  shall 
take  place,  although  there  be  no  issue  of  the  marriage,  in  all 
cases  where  the  issue,  if  any,  would  have  inherited.  If  such  mar- 
ried woman  shall  leave  no  children  nor  descendants  of  such  living, 
the  husband  shall  be  entitled  to  such  personal  property  abso- 
lutely. If  such  married  woman  shall  leave  a  child  or  children 
living,  her  personal  estate  shall  be  divided  amongst  the  husband 
and  such  child  or  children,  share  and  share  alike;  if  any  such 
child  or  children  being  dead  shall  have  left  issue  such  issue  shall 
be  entitled  to  the  share  of  the  parent.:}: 

Section  2.  Subject  to  the  estates  and  interests  hereinbe- 
fore given  to  the  widow  or  surviving  husband,  if  any,  the  real 
estate  of  such  intestate  shall  descend  to,  and  the  personal  estate 
not  othewise  hereinbefore  disposed  of,  shall  be  distributed  among 
his  issue,  according  to  the  following  rules  and  order  of  suc- 
cession, viz : — 

(1.)  If  such  intestate  shall  leave  children,  but  no  other  de- 
scendant, being  the  issue  of  a  deceased  child,  the  estate  shall  de- 
scend to  and  be  distributed  among  such  children. 

(2.)  If  such  intestate  shall  leave  grandchildren,  but  no  child 
or  other  descendant,  being  the  issue  of  a  deceased  grandchild, 
the  estate  shall  descend  to  and  be  distributed  among  such  grand- 
children. 

(3.)  If  such  intestate  shall  leave  descendants  in  any  other 
degree  of  consanguinity,  however  remote  from  him,  and  all  in 
the  same  degree  of  consanguinity  to  him,  the  estate  shall  descend 
to  and  be  distributed  among  such  descendants. 

*This  section  is  set  forth  as  amended  by  the  Act  of  April  1,  1909,  P. 

L.  87. 

fThis  act  is  constitutional,  Guentheor's  Estate,  235  Pa.  67. 
JThis  section  is  set  forth  as  amended  by  the  Act  of  April  I,  1909.  P- 
L.  87. 


Title  by  Descent.  173 

(4.)  If  such  intestate  shall  leave  descendants  in  different  de- 
grees of  consanguinity  to  him,  the  more  remote  of  them  being 
the  issue  of  a  deceased  child,  grandchild  or  other  descendant,  the 
estate  shall  descend  to  and  be  distributed  among  them  as  fol- 
lows, viz : 

(a.)  Each  of  the  children  of  such  intestates  shall  receive  such 
share  as  such  child  would  have  received,  if  all  the  children  of 
the  intestate  who  shall  then  be  dead,  leaving  issue,  had  been  living 
at  the  death  of  the  intestate. 

(b.)  Each  of  the  grandchildren,  if  there  shall  be  no  children, 
in  like  manner,  shall  receive  such  share  as  he  or  she  would  have 
received  if  all  the  other  grandchildren  who  shall  then  be  dead, 
leaving  issue,  had  been  living  at  the  death  of  the  intestate,  and 
so  in  like  manner  to  the  remotest  degree. 

(c.)  In  every  such  case  the  issue  of  such  deceased  child, 
grandchild  or  other  descendant,  shall  take,  by  representation  of 
their  parents  respectively,  such  share  only  as  would  have  de- 
scended to  such  parent,  if  they  had  been  living  at  the  death  of 
the  intestate. 

Section  3.  In  default  of  issue  as  aforesaid,  and  subject 
also  as  aforesaid  to  the  estates  and  interests  hereinbefore  given 
to  the  widow  or  surviving  husband,  if  any,  the  real  estate  shall 
go  to  the  father  and  mother  of  such  intestate,  during  their  joint 
lives  and  the  life  of  the  survivor  of  them,  and  the  personal  estate 
not  otherwise  hereinbefore  disposed  of  shall  be  vested  in  them 
absolutely,  or  if  either  the  father  or  mother  be  dead  at  the  time 
of  the  death  of  the  intestate,  the  parent  surviving  such  intestate 
shall  enjoy  such  real  estate  during  his  or  her  life,  and  such  per- 
sonal estate  absolutely. 

Section  4.  In  default  of  issue  as  aforesaid,  and  subject  to 
the  estates  and  interests  hereinbefore  given  to  the  widow  or 
surviving  husband,  father  and  mother,  of  the  intestate,  if  any, 
the  real  estate  shall  descend  to,  and  the  personal  estate,  not  other- 
wise hereinbefore  disposed  of,  shall  be  distributed  among  the 
collateral  heirs  and  kindred  of  such  intestate,  according  to  the 
following  rules  and  order  of  succession,  viz: 

(1.)  If  such  intestate  shall  leave  brothers  and  sisters,  or  either, 
of  the  whole  blood,  and  no  nephew  or  niece,  being  the  issue  of  a 
deceased  brother  or  sister  of  the  whole  blood,  the  real  estate 
shall  descend  to  and  vest  in  such  brothers  and  sisters. 


174  Conveyancing   in   Pennsylvania. 

(2.)  If  such  intestate  shall  leave  neither  brother  nor  sister  of 
the  whole  blood,  but  nephews,  or  nieces,  being  the  children  of 
such  deceased  brother  or  sister,  the  real  estate  shall  descend  to 
and  vest  in  such  nephews  and  nieces. 

(3.)  If  such  intestate  shall  leave  brothers  or  sisters  of  the 
whole  blood,  and  also  nephews  or  nieces,  being  the  children  of 
any  such  deceased  brother  or  sister,  the  real  estate  shall  descend 
to  and  vest  in  such  brothers  and  sisters  and  nephews  and  nieces, 
as  follows,  viz :  Every  such  brother  and  sister  shall  receive  such 
share  as  he  or  she  would  have  received,  if  all  the  brothers  and 
sisters  who  shall  then  be  dead,  leaving  children,  had  been  living 
at  the  death  of  the  intestate,  and  such  nephews  and  nieces  shall 
take  by  representation  of  their  parents  respectively,  such  share 
only  as  would  have  descended  to  such  parents  if  they  had  been 
living  at  the  death  of  the  intestate. 

(4.)  If  such  intestate  shall  leave  neither  brother  nor  sister  of 
the  whole  blood,  nor  any  nephew  or  niece,  being  the  child  of 
such  deceased  brother  or  sister,  the  real  estate  shall  descend  to 
and  vest  in  the  next  of  kin  of  such  intestate,  being  the  descend- 
ants of  his  brothers  and  sisters  of  the  whole  blood. 

(5.)  The  personal  estate  of  such  intestate,  not  otherwise  here- 
inbefore disposed  of,  shall,  in  the  several  cases  mentioned  in  this 
section,  be  distributed  among  the  brothers  and  sisters  of  the 
intestate,  and  their  issue,  in  like  manner  in  each  of  the  said  cases, 
as  is  provided  for  the  descent  and  division  of  the  real  estate  of 
the  intestate,  but  without  any  distinction  of  blood. 

Section  5.  In  default  of  issue,  and  brothers  and  sisters  of 
the  whole  blood  and  their  descendants  as  aforesaid,  and  subject 
to  the  estates  and  interests  hereinbefore  given  to  the  widow  or 
surviving  husband,  if  any,  the  real  estate  shall  go  to  and  be 
vested  in  the  father  or  mother  of  the  intestate,  or,  if  both  be 
living  at  the  time  of  his  death,  in  the  father  and  mother  for  such 
estate  as  the  said  intestate  had  therein. 

Section  6.  In  default  of  issue  and  brothers  and  sisters  of 
the  whole  blood  and  their  descendants,  and  also  of  father  and 
mother,  competent  by  this  act  to  take  an  estate  of  inheritance 
therein,  the  real  estate  of  such  intestate,  subject  to  the  life 
estates  hereinbefore  given,  if  any,  shall  descend  to  and  be  vested 
in  the  brothers  and  sisters  of  the  half-blood  of  the  intestate,  and 
their  issue,  in  like  manner,  respectively,  as  is  hereinbefore  pro- 


Title  by  Descent.  175 

vided  for  the  cases  of  brothers  and  sisters  of  the  whole  blood, 
and  their  issue. 

Section  7.  In  default  of  all  persons  hereinbefore  described, 
the  real  and  personal  estate  of  the  intestate  shall  descend  to  and 
be  distributed  among  the  next  of  kin  to  such  intestate. 

Section  8.  Provided,  That  there  shall  be  no  representa- 
tion admitted  amongst  collaterals,  after  brothers'  and  sisters' 
children. 

Section  9.  Among  collaterals,  when  by  existing  laws  en- 
titled to  inherit,  the  real  and  personal  estate  shall  descend  and  be 
distributed  among  the  granchildren  of  brothers  and  sisters,  and 
the  children  of  uncles  and  aunts,  by  representation ;  such  descend- 
ants taking  equally  among  them  such  share  as  their  parent  would 
have  taken,  if  living  (27  April,  1855,  P.  L.  368,  Sec.  2). 

Section  10.  Whenever  by  the  provisions  of  the  intestate 
laws  of  this  commonwealth  it  is  directed  that  the  real  and  per- 
sonal estate  shall  descend  to  and  be  distributed  among  the  next 
of  kin  to  such  intestate,  and  such  next  of  kin  shall  be  one  or 
more  than  one  grand-parent  of  such  intestate,  and  there  shall  be 
living,  at  the  time  of  the  decease  of  such  intestate,  children  or 
other  descendants  of  any  deceased  grand-parent,  then  the  chil- 
dren or  other  descendants  of  any  such  deceased  grand-parent 
shall  represent  the  grand-parent  so  deceased,  and  shall  take  the 
share  of  the  real  or  personal  estate  to  which  such  deceased  grand- 
parent would  be  entitled  if  living. 

The  issue  of  any  such  deceased  grand-parent  shall  take  ac- 
cording to  the  following  rules  of  succession,  namely : 

(1.)  If  there  be  only  children  of  such  deceased  grand-parent, 
the  share  of  such  deceased  grand-parent  shall  descend  to  and  be 
distributed  among  such  children. 

(2.)  If  there  be  grandchildren  of  such  deceased  grand-parent 
and  no  other  descendants  and  no  child,  the  share  of  such  de- 
ceased grand-parent  shall  descend  to  and  be  distributed  among 
such  grandchildren. 

(3.)  If  there  be  descendants  of  such  deceased  grand-parent  in 
any  other  degree  however  remote  from  him,  and  all  in  the  same 
degree  of  consanguinity  to  him,  the  share  of  such  deceased  grand- 
parent shall  descend  to  and  be  distributed  among  such  de- 
scendants. 

(4.)  If  there  should  be  descendants  of  such  deceased  grand- 
parent in  different  degrees  of  consanguinity  to  him,  the  more 


176  Conveyancing  in   Pennsylvania. 

remote  of  them  being  the  issue  of  a  deceased  child,  grandchild 
or  other  descendant,  the  share  of  such  deceased  grand-parent, 
shall  descend  to  and  be  distributed  among  them  as  follows, 
namely : 

(a.)  Each  of  the  children  of  such  deceased  grand-parent  shall 
receive  such  share  as  such  child  would  have  received  if  all  the 
children  of  such  deceased  grand-parent,  who  shall  then  be  dead 
leaving  issue,  had  been  living  at  the  death  of  the  intestate. 

(b.)  Each  of  the  grandchildren,  if  there  shall  be  no  children 
of  such  deceased  grand-parent,  in  like  manner  shall  receive  such 
share  as  he  or  she  would  have  received  if  all  the  other  grand- 
children, who  shall  then  be  dead,  leaving  issue,  had  been  living 
at  the  death  of  the  intestate,  and  so  in  like  manner  to  the  re- 
motest degree. 

(c.)  In  every  such  case,  the  issue  of  such  deceased  child, 
grandchild  or  other  descendant  of  such  deceased  grand-parent 
shall  take,  by  representation  of  their  parents  respectively,  such 
share  only  as  would  have  descended  to  such  parents,  if  they  had 
been  living  at  the  death  of  the  intestate. 

Section  ii.  Provided  also,  No  person,  who  is  not  of  the 
blood  of  the  ancestors  or  other  relations,  from  whom  any  real 
estate  descended,  or  by  whom  it  was  given  or  devised  to  the  in- 
testate, shall,  in  any  of  the  cases  before  mentioned,  take  any 
estate  of  inheritance  therein,  but  such  real  estate,  subject  to  such 
life  estates  as  may  be  in  existence  by  virtue  of  this  act,  shall 
pass  to  and  vest  in  such  other  persons  as  would  be  entitled  by 
this  act,  if  the  persons  not  of  the  blood  of  such  ancestor  or  other 
relation  had  never  existed,  or  were  dead  at  the  decease  of  the 
intestate. 

Section  12.  In  default  of  known  heirs  or  kindred,  compe- 
tent as  aforesaid,  the  real  estate  of  such  intestate  shall  be  vested 
in  his  widow,  or,  if  such  intestate  were  a  married  woman,  in  her 
surviving  husband,  for  such  estate  as  the  intestate  had  therein, 
and  in  such  case  the  widow  shall  be  entitled  to  the  whole  of  the 
personal  estate  absolutely. 

Section  13.  And  whereas,  it  is  the  true  intent  and  mean- 
ing of  this  act  that  the  heir  at  common  law  shall  not  take,  in  any 
case,  to  the  exclusion  of  other  heirs  and  kindred  standing  in  the 
same  degree  of  consanguinity  with  him  to  the  intestate,  it  is 
hereby  declared,  that,  in  every  case  which  may  arise,  not  ex- 
pressly provided  for  by  this  act,  the  real  as  well  as  the  personal 


Title  by  Descent.  177 

estate  of  an  intestate  shall  pass  to  and  be  enjoyed  by  the  next  of 
kin  of  such  intestate,  without  regard  to  the  ancestor  or  other 
relation  from  whom  such  estate  may  have  come. 

Section  14.  In  default  of  all  such  known  heirs  or  kindred, 
widow  or  surviving  husband  as  aforesaid,  the  real  and  personal 
estate  of  such  intestate  shall  go  to  and  be  vested  in  the  common- 
wealth by  escheat. 

Section  15.  Descendants  and  relatives  of  an  intestate,  be- 
gotten before  his  death  and  born  thereafter,  shall  in  all  cases 
inherit  and  take  in  like  manner  as  if  they  had  been  born  in  the 
lifetime  of  such  intestate. 

Section  16.  Wherever,  by  the  provisions  of  this  act,  it  is 
directed  that  real  or  personal  estate  shall  descend  to  or  be  dis- 
tributed among  several  persons,  whether  lineal  or  collateral  heirs 
or  kindred,  standing  in  the  same  degree  of  consanguinity  to  the 
intestate,  if  there  shall  be  only  one  of  such  degree,  he  shall  take 
the  whole  of  such  estate,  and  if  there  be  more  than  one,  they 
shall  take  in  equal  shares,  and,  if  real  estate,  shall  hold  the  same 
as  tenants  in  common. 

Section  17.  The  shares  of  the  estate  directed  by  this  act 
to  be  allotted  to  the  widow,  shall  be  in  lieu  and  full  satisfaction 
of  her  dower  at  common  law. 

Section  18.  If  any  child  of  an  intestate  shall  have  any 
estate  by  settlement  of  such  intestate,  or  shall  have  been  ad- 
vanced by  him  in  his  lifetime,  either  in  real  or  personal  estate, 
to  an  amount  of  value  equal  to  the  share  which  shall  be  allotted 
to  each  of  the  other  children  of  such  intestate,  such  child  shall 
have  no  share  of  the  real  or  personal  estate  of  such  intestate; 
and  if  such  settlement  or  advancement  be  to  an  amount  or  value 
less  than  the  share  to  which  he  would  otherwise  be  entitled,  if  no 
such  advancement  had  been  made,  then  so  much  only  of  the  real 
and  personal  estate  of  such  intestate  shall  be  allotted  to  such 
child,  as  shall  make  the  estate  of  all  the  said  children  to  be 
equal,  as  near  as  can  be  estimated. 

Section  19.  The  provisions  of  this  act,  relative  to  descent 
and  distribution  of  real  and  personal  estate  among  the  descend- 
ants and  collateral  relations  of  intestates,  shall  be  construed  to 
mean  such  persons  only  as  may  have  been  born  in  lawful  wed- 
lock. 

Section  20.  The  residue  of  the  proceeds  of  the  sale  of 
any  real  estate  of  an  intestate,  made  by  authority  of  law  for  the 


i/8  Conveyancing   in   Pennsylvania. 

payment  of  debts,  shall  vest  in  the  persons  entitled  by  this  act  to 
such  real  estate,  in  such  proportions,  and  for  the  like  interests, 
respectively,  as  they  may  have  had  in  such  real  estate. 

Section  21.  All  such  of  the  intestate's  relations  and  per- 
sons concerned,  who  shall  not  lay  legal  claim  to  their  respective 
shares,  within  seven  years  after  the  decease  of  the  intestate,  shall 
be  debarred  from  the  same  forever :  Provided,  That  if  any  such 
relation  or  person  shall,  at  the  time  of  the  decease  of  the  intes- 
tate, be  within  the  age  of  twenty-one  years,  or  a  married  woman, 
he  or  she  shall  be  entitled  to  receive  and  recover  the  same,  if  he 
or  she  shall  lay  legal  claim  thereto,  within  seven  years  after 
coming  to  full  age  or  discoverture. 

Section  22.  Nothing  in  this  act  contained,  relative  to  a 
distribution  of  personal  estate  among  kindred,  shall  be  construed 
to  extend  the  personal  estate  of  an  intestate,  whose  domicile,  at 
the  time  of  his  death,  was  out  of  this  commonwealth. 

Section  23.  This  act  shall  take  effect  from  and  after  the 
first  day  of  October  next,  and  so  much  of  any  act  of  assembly  as 
is  hereby  altered  or  supplied  is  repealed  from  and  after  said  day, 
except  so  far  as  may  be  necessary  to  complete  the  settlement  and 
disposition  of  the  estate  of  any  person  who  may  have  died  before 
that  time. 

135.     Synopsis  of  Intestate  Laws. 

In  interpreting  the  intestate  laws,  two  general  rules  should  be 
carefully  remembered. 

1.  Lineal  descendants  in  the  descending  series  inherit  equally, 
no  distinction  being  made  between  males  and  females.  Thus,  the 
property  of  the  father  is  inherited  by  his  lineal  descendants,  say 
his  children  equally. 

2.  Lineal  heirs  in  the  ascending  series  will  take  in  preference 
to  the  collateral  kindred.  If  the  decedent  dies  without  issue,  his 
parents  get  the  estate  in  preference  to  his  uncle  or  cousins.  Be- 
fore setting  forth  the  synopsis  one  final  word  as  to  the  meaning 
of  the  terms,  per  capita  and  per  stirpes.  These  terms  can  be 
better  understood  by  illustration  than  by  definition.  Suppose  a 
man  dies  intestate  who  had  originally  two  children  one  of  which 
predeceased  him  so  that  at  his  death  there  survived  him  one  child 
and  two  grand-children  of  his  deceased  child.  The  son  takes  one- 
half  of  the  estate,  i.  e.  he  takes  per  capita ;  the  grandchildren  take 
each  half  of  what  their  parent  would  have  received;  that  is  one- 


Title  by  Descent.  179 

fourth  of  the  whole;  they  take  per  stirpes;  *.  e.  they  represent 
their  father  and  divide  what  he  would  have  gotten. 

SYNOPSIS. 

1. 

WHERE  A  PERSON  DIES  UNMARRIED  OR  A  WIDOW  OR  WIDOWER 
WITHOUT  CHILDREN. 

The  Real  Estate  descends : 

(a.)  To  the  father  and  mother  and  survivor  of  them  for  life 
»'.  e.  by  entirety  (see  Par.  5,  Entirety). 

(b.)  At  parents  death  to  the  decedent's  brothers  and  sisters 
and  children  of  such  as  may  be  dead  who  take  per  stirpes. 

(c.)  If  no  brothers  and  sisters,  then  to  the  nephews  and 
nieces  of  the  whole  blood  per  capita;  ».  e.  in  equal  shares. 

(d.)  In  absence  of  brothers,  sisters,  nephews,  &c,  or  other 
descendants  of  the  whole  blood,  the  estate  goes  to  their  next  of 
kin.  (This  means  next  of  kin  who  is  descended  from  the  de- 
ceased brothers  and  sisters.) 

(e.)  If  there  be  no  next  of  kin  then  to  father  and  mother  and 
survivor  absolutely. 

(f.)  If  neither  of  above  classes  be  able  to  take  then  it  goes  to 
half  blood  in  the  order  above  set  forth. 

(g.)  If  neither  be  living  then  to  the  next  of  kin.  (This  means 
general  next  of  kin.) 

(h.)  If  none  then  it  escheats  to  commonwealth. 

THE  PERSONAL  PROPERTY  DESCENDS  \ 

(a.)  To  mother  and  father  absolutely. 

(b.)  If  parents  are  dead  the  personal  property  is  distributed 
as  the  real  estate  above  set  forth  except  that  there  is  no  distinc- 
tion as  to  the  half  blood. 

11. 

WHERE  DECEDENT  IS  A  WDDOW  OR  WIDOWER  LEAVING  CHILDREN  OR 
LINEAL  DESCENDANTS. 

THE  REAL  ESTATE  AND  PERSONAL  PROPERTY  DESCENDS: 

(a.)  To  the  lineal  descendants  who  if  they  stand  in  the  same 
degree  take  equally  per  capita,  e.  g.  as  if  all  be  children  or  all  be 
grandchildren. 


i8o  Conveyancing  in   Pennsylvania. 

(b.)  But  if  lineals  be  of  different  degrees  they  take  by  repre- 
sentation (per  stirpes).  E.  g.  if  some  be  children  and  others  be 
grandchildren,  the  grandchildren  do  not  take  equally  with  the 
children,  but  divide  their  parents'  share. 

in. 

MARRIED  MAN  LEAVING  WIFE   SURVIVING   HIM. 
HIS  REAL  ESTATE  AND  PERSONAL  PROPERTY  DESCENDS: 

1.  If  no  issue  (i.e.  children). 

(a.)  Five  Thousand  ($5,000.00)  Dollars  worth  thereof  out  of 
either  real  or  personal  property  or  both  to  the  widow  absolutely. 
And  one-half  of  the  personal  property  remaining,  if  any,  abso- 
lutely. And  one-half  of  the  real  estate,  if  any,  to  the  wife  for 
life.  At  death  of  wife  said  one-half  of  real  estate  goes  as  does 
the  other  half  in  the  manner  outlined  in  division  I. 

2.  If  he  dies  leaving  issue  (».  e.  children). 

(a.)  His  personal  property  descends  one-third  to  the  wife  ab- 
solutely, the  remainder  to  his  children. 

(b.)  His  real  estate  goes  one-third  to  his  wife  for  life,  the  re- 
mainder to  his  children,  &c,  as  set  forth  in  Division  II.  At  the 
wife's  death  the  one-third  goes  also  to  the  children,  &c,  as  set 
forth  in  Division  II. 

3.  If  no  children  and  no  known  heirs  or  kindred  whatever, 
then  the  entire  real  estate  goes  to  the  wife  absolutely. 

IV. 

MARRIED    WOMAN    LEAVING    HUSBAND. 

1.  If  no  issue  (*.  e.  children). 

(a.)  All  of  her  real  estate  goes  to  the  husband  for  life  and  at 
his  death  it  goes  as  outlined  in  Division  I. 

(b.)  All  of  her  personal  property  goes  to  the  husband  abso- 
lutely. 

2.  If  issue  (t.  e.  children). 

(a.)  All  the  real  estate  to  husband  for  life.  After  his  death 
it  descends  to  children  and  their  issue  as  outlined  in  Division  II. 

(b.)  Personal  property  descends  to  the  husband  and  children 
absolutely,  share  and  share  alike.    That  is,  the  husband  takes  a 


Title  by  Descent.  181 

child's  share  so  if  there  be  one  child  the  husband  gets  a  half  and 
the  child  a  half,  etc.  If  any  child  dies  leaving  issue  the  issue 
takes  the  parents  share  (per  stirpes). 

136.  Whole  Blood  and  Half  Blood- 
Relationship  by  the  whole  blood  is  where  two  persons  are 

descended  from  the  same  pair  of  ancestors  as  where  two  persons 
have  the  same  grandfather  and  same  grandmother.  Relation- 
ship by  the  half  blood  is  where  two  or  more  persons  have  only 
one  common  ancestor;  as  where  they  are  descended  from  the 
same  grandfather,  but  from  different  grandmothers. 

By  the  intestate  act  of  Pennsylvania  (See  Section  5,  page  174) 
collateral  heirs  who  are  of  the  half  blood  are  postponed  until 
all  of  the  whole  blood  are  extinguished.  But  observe  this  dis- 
tinction as  to  whole  and  half  blood  exists  only  as  to  real  estate 
and  not  as  to  personal  property, 

137.  Advancements. 

The  intestate  laws  provide  "that  if  any  child  of  an  intestate 
shall  have  any  estate  by  settlement  of  such  intestate,  or  shall  have 
been  advanced  by  him  in  his  life  time,  either  in  real  or  personal 
estate,  to  the  amount  or  value  equal  to  the  share  which  shall  be 
allotted  to  each  of  the  other  children  of  such  intestate,  such  child 
shall  have  no  share  of  the  real  or  personal  estate  of  such  intes- 
tate" (Act  of  April  8,  1833,  Sec.  16,  P.  L.  315  (Sec.  18,  Par.  134 
supra).  The  intention  of  the  act  is  plainly  that  all  children  should 
share  equally.  Thus  advances  made  to  children  bar  them  from 
participating  in  the  estate  to  the  amount  of  the  advancement  re- 
ceived. An  advancement  is  an  irrevocable  gift  by  a  parent  to  a 
child  of  the  whole  or  part  of  what  it  is  supposed  the  child  will 
be  entitled  to  on  the  death  of  the  parent,  who  afterwards  died 
intestate  (Eshleman's  Appeal,  74  Pa.  42).  But  to  make  a  gift 
an  advancement  it  must  have  been  intended  as  such  when  made 
(Dare's  Estate,  9  D.  R.  431). 

138.  Recital  of  Deed  of  One  Inheriting  by  Descent. 

When  the  owner  of  real  estate  dies  the  record  at  the  recorder 
of  deeds  office  still  shows  title  in  the  decedent's  name  because  the 
heir  gains  title  not  by  virtue  of  deed,  but  by  mere  operation  of 
law.  When  therefore  the  heir  conveys  the  land  he  should  show 
by  deed  how  he  gained  title  in  order  to  fill  up  the  gap  existing  on 


182  Conveyancing  in  Pennsylvania. 

the  record  between  his  grantee  and  his  ancestor.  This  is  done 
by  the  recital.  The  following  is  a  form  of  recital  to  be  inserted 
in  a  deed  drawn  for  a  conveyance  from  a  grantor  who  has  de- 
rived his  title  by  operation  of  the  intestate  laws : 

Being  the  same  premises  which  Adam  Smith  by  In- 
denture bearing  date  the  23rd  day  of  February,  1896 
and  recorded  in  the  Office  for  the  Recording  of  Deeds 
in  and  for  the  City  and  County  of  Philadelphia  in  Deed 
Book  J.  V.  No.  23,  Page  322,  &c,  granted  and  conveyed 
to  Samuel  Moore  in  fee. 

And  the  said  Samuel  Moore  being  seised  of  said  prem- 
ises departed  this  life  intestate  on  the  Fifteenth  day  of 
September,  A.  D.  1912,  leaving  surviving  him  as  sole 
heir  Robert  Moore  to  whom  said  premises  decended 
in  fee. 

SECTION   II. 
ESTATE  BY  CURTESY. 

139.    Estate  by  Curtesy. 

This  estate  has  already  been  defined  (See  Par.  3).  It  is  the 
right  of  the  husband  to  enjoy  a  life  estate  in  all  his  wife's  real 
estate  at  her  death.  At  common  law  the  husband  was  not  entitled 
to  his  curtesy  unless  there  was  a  child  born  of  the  marriage, 
but  this  condition  as  well  as  others  stipulated  by  the  common 
law  are  no  longer  in  force  in  Pennsylvania,  so  that  the  present 
day  estate  by  curtesy  is  somewhat  different  from  the  common 
law  estate.  By  marriage  alone,  whether  a  child  be  born  thereof 
or  not,  the  husband  becomes  vested  in  his  estate  by  curtesy, 
which  becomes  consummate  upon  his  wife's  death  (Act  of 
April  11,  1848,  P.  L.  536,  Sec.  10;  see  also  Act  of  May  4,  1855, 
P.  L.  430).  His  interest  is  an  absolute  one  and  can  only  be 
divested  once  it  vests  by  his  own  acts.  It  subsists  and  follows 
such  land  which  his  wife  may  have  conveyed  without  his  joining 
in  the  deed.  While  the  estate  vests  the  moment  of  marriage, 
enjoyment  thereof  is  postponed  until  the  death  of  the  wife. 
Nor  since  the  Act  of  1850  (Act  of  April  22,  1850,  Sec.  20,  P. 
L.  553)  can  the  creditors  of  the  husband  levy  upon  and  sell 
this  interest  during  the  lifetime  of  the  wife.  Nor  is  a  judgment 
against  the  husband  during  the  life  of  the  wife  a  lien  against 
his  curtesy  (Act  of  April  1,  1863,  Sec.  1,  P.  L.  212). 


Title  by  Descent.  183 

140.  Against  What  Land  Curtesy  Attaches. 

In  general  it  may  be  stated  that  a  husband's  right  of  curtesy 
attaches  to  all  land  to  which  his  wife  has  title  at  time  of  mar- 
riage or  to  which  she  acquires  title  thereafter,  whether  by  deed, 
descent,  will  or  otherwise.  There  is,  however,  this  exception, 
such  land  as  may  be  expressly  devised  to  her  by  will  or  conveyed 
by  deed  of  trust  wherein  the  instrument  stipulates  that  the  land 
is  to  be  for  her  sole  and  separate  use,  free  from  control  of 
her  husband  and  specifically  shows  the  intent  of  the  testator  or 
grantor,  that  the  husband's  right  of  curtesy  should  be  barred. 

141.  How  Curtesy  May  be  Barred. 

The  husband's  estate  of  curtesy  is  absolute  and  exists  unless 
barred  by  the  husband's  own  acts  in  any  of  the  following 
methods. 

(a.)  By  Voluntary  Joinder  in  a  Deed  of  Conveyance. — Should 
the  husband  join  in  his  wife's  deed  to  convey  away  her  land  his 
curtesy  is  barred.  Mere  consent  given  by  husband  to  his  wife 
to  sell  does  not  bar  him;  he  must  join  in  the  deed.  If  he,  how- 
ever, signs  the  agreement  of  sale  with  his  wife  he  can  be  com- 
pelled to  sign  the  deed. 

(b.)  By  Divorce  A.  V.  AT.— Divorces  are  of  two  kinds:  a 
vinculo  matrimoni,  usually  abbreviated  A.  V.  M.,  which  means 
literally  from  the  bonds  of  matrimony.  It  is  the  so-called  abso- 
lute divorce  and  entitles  both  parties  to  re-marry.  The  other  is 
a  mensa  et  thoro,  meaning  literally  from  bed  and  board,  which 
is  really  in  effect  a  legal  separation  and  does  not  entitle  either 
party  to  re-marry.  The  former,  viz:  the  absolute  divorce,  bars 
the  husband's  curtesy,  the  latter  does  not  (Schock's  Appeal,  33 
pa-  350 • 

(c.)  Desertion  and  Non-support  by  Husband.— Und^v  the  Act 
of  May  4,  1855  (p-  L.  430)-  a  husband  who  has  for  a  period  of 
one  year  or  upwards  before  his  wife's  death  wilfully  neglected  or 
refused  to  support  her  or  for  that  period  or  upward  wilfully  and 
maliciously  deserted  her  shall  have  no  claim  to  her  real  or  per- 
sonal estate  after  her  decease,  whether  by  the  curtesy  or  under 
the  intestate  laws  of  Pennsylvania.  The  burden  is  on  the  hus- 
band who  has  left  his  wife,  to  justify  his  desertion  and  to  do  so 
he  must  show  such  cause  as  would  have  entitled  him  to  a  decree 
of  divorce  A.  V.  M.  against  her  (Hahn  v.  Bealor,  132  Pa.  242; 
Weller  v.  Weller,  213  Pa.  265). 


184  Conveyancing  in   Pennsylvania. 

(d.)  By  Voluntary  Agreement  or  Release. — A  husband  may 
agree  in  writing  either  before  marriage  or  thereafter  to  forego 
all  claims  of  curtesy  against  his  wife's  estate.  Such  agreement 
when  properly  executed  is  valid  and  bars  his  curtesy  (McBride's 
Estate,  81  Pa.  303;  Singer's  Estate,  233  Pa.  55). 

(e.)  By  Sheriff's  Sale. — A  sheriff's  sale  of  the  wife's  real  estate 
on  a  judgment  confessed  by  or  obtained  against  her  bars  the 
husband's  curtesy  (Wells  v.  Bunnell,  160  Pa.  460).  But  if  the 
judgment  is  collusive  or  a  mere  fraudulent  scheme  to  deprive 
either  husband  or  wife  of  their  interests  it  will  be  set  aside 
(Waterhouse  v.  Waterhouse,  206  Pa.  433). 

SECTION   III. 

DOWER. 

142.  Dower. 

By  dower  we  mean  a  life  estate  which  the  law  gives  to  the 
widow  in  a  third  of  land  and  tenements  of  her  husband  of  which 
he  was  seised  at  any  time  during  the  marriage.  This  also  is  an  old 
common  law  estate  that  still  survives,  although  it,  like  curtesy, 
has  been  changed  in  many  respects.  Common  law  dower  is  taken 
away  in  all  cases  where  the  husband  dies  intestate,  seised  of 
lands  and  in  its  place  a  statutory  provision  consisting  partly  of 
real  and  partly  of  personal  estate  is  given  to  the  widow  by  the 
intestate  laws  (See  Act  of  April  8,  1833,  P.  L.  249,  Sec.  II,  and 
amendment  thereto  by  act  of  1909  [supra] ).  By  this  provision,  as 
is  set  forth  before  (Par.  134,  Sec.  1,  Clause  1-2-3),  trie  widow,  if 
there  be  children,  is  given  one-third  of  personal  property  abso- 
lutely and  one-third  of  the  real  estate  for  life.  If  no  children,  the 
widow  is  given  $5,000.00  absolutely  out  of  real  or  personal  prop- 
erty or  out  of  both  together,  with  one-half  of  the  remaining  per- 
sonal property  absolutely  and  one-half  of  the  remaining  real 
estate  for  life.  This  provision  the  law  specifically  says  shall  be 
in  lieu  of  a  dower  (See  Par.  134,  Sec.  17). 

143.  Common  Law  Dower  Still  Exists  During  Husband's  Life. 

It  should  be  remembered  that  the  statute  in  Pennsylvania 
does  not  abolish  dower,  but  makes  the  provision  above  referred 
to  in  lieu  of  dower.  Now,  as  the  wife  only  becomes  entitled  to 
that  provision  upon  her  husband's  death,  it  follows  that  the  in- 
terest which  she  holds  during  his  lifetime  is  still  the  old  common 


Title  by  Descent.  185 

law  dower  of  one-third.  But  upon  his  death  she  receives  by 
statute  the  provision  above  referred  to  in  lieu  thereof.  Suppose, 
therefore,  a  husband  conveys  land  without  his  wife  joining  in 
the  deed ;  the  grantee  takes  title  to  the  land  subject  to  the  dower 
right  of  the  wife.  Upon  the  husband's  death  she  can  bring  her 
action  against  the  grantee  or  any  subsequent  holder  of  the  land 
to  recover  her  common  law  dower  right.  This  is  the  sole  in- 
stance in  which  it  can  be  said  common  law  dower  still  exists  in 
Pennsylvania. 

144.  When  the  Dower  Eight  of  Wife  Vests. 

Just  as  in  the  case  of  tenant  by  curtesy  the  dower  right  of  a 
wife  vests  from  the  instant  of  marriage.  From  that  time  on  she 
has  a  one-third  interest  in  the  husband's  land  or  such  as  he  may 
acquire  thereafter;  an  interest  which  can  only  be  released  by  one 
of  the  methods  set  out  in  the  next  paragraph. 

145.  How  Dower  May  be  Barred. 

Dower  may  be  barred  or  forfeited  by  various  acts  of  a  wife 
just  as  we  have  seen  a  husband's  curtesy  may  be  barred.  These 
methods  are: — 

(a.)  By  Voluntary  Joinder  in  a  Deed  of  Husband. — If  the 
wife  joins  in  a  husband's  deed  of  conveyance  she  thereby  is  held 
to  have  signed  away  or  relinquished  her  dower  rights.  Mere 
consent  to  the  transaction  does  not  bar  her  rights  unless  she 
actually  signs  or  agrees  to  do  so  by  signing  the  agreement  of 
sale. 

(b.)  Divorce  A.  V.  M.—A  divorce  A.  V.  M.  (See  Par.  141  b), 
i.  e.,  an  absolute  divorce,  also  bars  her  right  (Richardson's  Estate. 
132  Pa.  375;  Miltimore  v.  Miltimore,  40  Pa.  151).  But  not  a 
mere  separation  or  even  desertion  (see  c.  f.,  infra). 

(c.)  Elopement  and  Adultery  of  the  Wife. — Should  the  wife 
elope  from  the  husband  and  commit  adultery  her  dower  rights 
are  barred  (Lewis  v.  Parrott,  7,7  W.  N.  C.  330).  Though  if  the 
husband  deserts  her  first  her  subsequent  adultery  will  not  bar  her 
dower  (Reel  v.  Elder,  62  Pa.  308).  Mere  desertion  by  wife  does 
not  bar  dower  nor  will  mere  adultery  bar  dower,  both  must  com- 
bine (Helsop  v.  Helsop,  82  Pa.  537). 

(d.)  Devise  in  Lieu  of  Doiver. — Where  a  husband  devises  a 
portion  of  his  property  by  will  to  his  widow  and  she  accepts 
said  provision  of  the  will,  it  is  presumed  to  be  in  lieu  of  dower. 


i86  Conveyancing  in   Pennsylvania. 

She  may,  however,  refuse  the  provision  made  in  the  will  and  elect 
to  take  under  the  intestate  laws  instead  (See  Right  to  Take  v. 
Will,  Par.  164,  infra). 

(e.)  Ante  Nuptial  Agreement. — An  ante  nuptial  agreement  is 
one  made  by  the  parties  about  to  marry  in  which  one  or  the 
other  releases  his  or  her  interest  in  the  other's  estate.  When 
such  an  agreement  releases  dower  it  is  barred. 

(/.)  Release  and  Agreements. — The  wife  may  by  writing  or 
agreement  release  her  dower  interest  (Singer's  Estate,  233  Pa. 
55).  So,  too,  agreement  or  deed  of  separation  may  contain 
release  of  dower  and  operate  to  bar  it  (Fennell's  Estate,  207,  Pa. 
309).  Such  deeds  of  separation  releasing  dower  may  be  and 
should  be  recorded.  Merely  living  separate  and  apart  does  not 
operate  to  abrogate  dower,  its  release  must  be  specifically  agreed 
to  in  writing  (Walsh  v.  Kelly,  34  Pa.  84;  Kaiser's  Estate,  199 
Pa.  269). 

(g.)  Sheriff's  Sale. — Where  land  is  sold  out  under  foreclosure 
of  mortgage  or  under  the  judgment  obtained  by  creditor  against 
the  husband,  the  dower  is  barred  (Scott  v.  Crosdale,  2  Dallas  127; 
Directors  of  Poor  v.  Royer,  43  Pa.  146).  But  where  the  mortgage 
is  made  or  judgment  permitted  to  be  obtained  by  connivance  of 
husband  with  intent  to  bar  widow,  the  court  will  declare  it  to  be 
a  fraud  and  preserve  the  wife's  rights  (Killinger  v.  Reidenhauer, 
6  S.  &  R.  531 ;  Waterhouse  v.  Waterhouse,  206  Pa.  433). 

(h.)  Sale  by  Orphan's  Court  for  Payment  of  Debts. — Where 
land  of  decedent  is  sold  by  orphans'  court  for  payment  of  dece- 
dent's debts  dower  is  also  barred  (Thomas  v.  Harris,  43  Pa.  23). 

146.     Bankruptcy  of  Husband  Does  Not  Bar  Dower. 

Bankruptcy  of  husband,  and  the  consequent  sale  of  his  real 
estate  by  the  receiver  or  trustee  in  bankruptcy  does  not  bar  dower 
(Porter  v.  Lazear,  109  U.  S.  84),  nor  does  a  voluntary  or  invol- 
untary assignment  for  benefit  of  creditors  under  the  state  acts 
bar  dower  (Mills  v.  Ritter,  197  Pa.  353;  McFadden  v.  McFadden, 
32  Pa.  Super.  536). 


CHAPTER  X. 
Escheat. 

Page.  Page. 

147.  Escheat.    Definition 187       152.  Escheat  not  complete  until 

148.  Escheat  of  Lands  held  by  Commonwealth     coin- 

Aliens 187  mences  proceedings    . . .    188 

149.  Escheat  of  Land   held  by  153.  Bona  Fide  Purchasers  be- 

Charities  188  fore  Escheat  gain  Good 

150.  Escheat  of  Lands  held  by  Title    189 

Trustee  188       154.  Proceedings  to  Escheat  ..   189 

151.  Escheat  of  Land  held  by 

Corporations   188 

147.  Escheat    Definition. 

Escheat  at  common  law  was  the  term  used  to  signify  the 
reverter  of  lands  held  in  fee  to  the  over  lord  by  reason  of  failure 
of  heirs  to  inherit.  More  modernly,  escheat  means  the  reverter 
of  property  to  the  commonwealth  or  sovereign  state  because 
of  absence  of  kin  or  kindred.  It  is,  therefore,  a  method  by 
which  the  commonwealth  acquires  title.  The  Pennsylvania  In- 
testate laws  (See  Sec.  14,  Par.  134,  supra)  provide  that  in  de- 
fault of  all  such  known  heirs  or  kindred,  widow  or  surviving 
husband  as  aforesaid,  the  real  and  personal  estate  shall  go  to  and 
be  vested  in  the  Commonwealth  by  escheat.  Escheat  is  not  lim- 
ited to  the  single  instance  of  an  intestate  dying  without  kin, 
but  exists  in  other  cases  where  a  person  or  corporation  forbidden 
to  do  so  attempts  to  hold  land. 

148.  Escheat  of  Lands  Held  by  Aliens. 

In  considering  the  capacity  of  persons  to  take,  hold  and  con- 
vey title  to  land  we  found  that  the  capacity  of  aliens  was  limited 
to  5,000  acres  in  quantity  and  $20,000  in  net  annual  value  (See 
Par.  28).  Should  he  acquire  more,  the  excess  escheats  to  the 
State.  Where  an  alien  sells  such  land  before  escheat  proceed- 
ings are  commenced  a  good  indefeasible  title  vests  in  the  pur- 
chaser (Act  of  April  6,  1859,  P.  L.  383,  Sec.  1). 

187 


188  Conveyancing  in   Pennsylvania. 

149.  Escheat  of  Land  Held  by  Charities. 

So  also  religious  and  charitable  institutions  are  limited  in  the 
amount  of  land  and  the  purposes  for  which  they  may  hold  it. 
Religious,  literary  and  charitable  societies  may  not  hold  real 
estate  to  a  greater  amount  than  a  yearly  value  of  $30,000.00  with- 
out express  legislative  sanction  (Act  of  April  26,  1855,  P.  L. 
329,  amended  by  Act  of  April  22,  1889,  P.  L.  42).  Here,  again, 
any  land  held  in  violation  of  the  limitations  escheats  to  the  State. 

150.  Escheat  of  Land  Held  by  Trustees. 

Where  the  cestui  que  trust  has  been  unknown  and  absent 
for  seven  years  and  still  remains  unknown,  all  property  in  the 
custody  of  the  trustee  may  be  escheated  to  the  Commonwealth 
as  in  other  cases  (Act  of  May  11,  191 1,  Sec.  1,  P.  L.  281). 

151.  Escheat  of  Land  Held  by  Corporations. 

We  have  also  seen  that  foreign'  corporations  and  to  a  less  ex- 
tent domestic  corporations  are  limited  in  their  right  to  hold  land 
(See  Par.  38  and  39).  Any  land  acquired  by  them  in  violation 
of  their  restrictions  escheats  to  the  State. 

152.  Escheat  Not  Complete  Until  Commonwealth  Begins  Proceed- 

ings. 

At  common  law  when  property  escheated  title  vested  in  the 
overlord  without  more.  True  it  is  that  he  had  often  to  commence 
proceedings  to  eject  the  occupiers  or  to  gain  possession,  but  title 
vested  in  him  absolutely  upon  the  mere  happening  of  the  event. 
But  this  is  not  true  under  the  escheat  law  in  Pennsylvania.  Title 
of  the  Commonwealth  to  escheated  property  is  not  perfect  until 
it  is  determined  by  inquest  that  there  are  no  heirs  or  known 
kindred  of  the  intestate  (Crawford  v.  Com.,  1  Watts  485; 
Mitchell  on  Real  Estate  316).  So,  also,  until  the  Commonwealth 
commences  proceedings  to  escheat  the  title  to  escheatable  land 
held  by  aliens,  religious  societies  or  corporations,  its  title  does 
not  become  perfect.  But  no  amount  of  delay  on  the  part 
of  the  Commonwealth  to  assert  its  title  can  inure  to  the  benefit 
of  the  alien,  religious  society  or  corporation  that  holds  the 
property  in  violation  of  its  limitation.  However,  in  the  case  of 
escheat  for  failure  of  heirs  there  Is  a  limitation  imposed  on 
the  Commonwealth  by  the  Act  of  May  2,  1889,  P.  L.  66,  which 
provides  that  the  Commonwealth  must  commence  escheat  pro- 


Escheat.  189 

ceedings  within  twenty-one  years  after  the  decease  of  intestate 
dying  without  heirs,  or  be  forever  barred. 

153.  Bona  Fide  Purchasers  Before  Escheat  Gain  Good  Title. 

The  effect  of  this  development  of  the  escheat  doctrine  in  Penn- 
sylvania was  that  if  in  order  to  perfect  its  title  it  was  necessary 
for  the  Commonwealth  to  begin  proceedings  and  if  before  such 
proceedings  were  commenced,  the  land  in  question  was  conveyed 
to  a  bona  fide  purchaser  for  value  without  notice,  such  purchaser 
ought  to  have  a  good  title  as  against  the  Commonwealth.  This 
was  the  position  eventually  taken  by  the  legislature  of  Pennsyl- 
vania, which,  after  passing  laws  from  time  to  time  confirming 
title  of  innocent  purchasers  gained  before  escheat  was  com- 
menced, passed  the  very  broad  Act  of  June  24,  1895  (P.  L.  264, 
Sec.  1),  which  provided,  section  1,  that  "Where  any  conveyances 
of  real  estate  in  this  Commonwealth  have  been  or  shall  be  made 
by  an  alien  or  any  foreign  corporation  or  corporations  of  another 
or  of  this  State  to  any  citizen  of  the  United  States  or  to  any  cor- 
poration chartered  under  the  law  of  this  Commonwealth,  and 
authorized  to  hold  real  estate,  before  any  inquisition  shall  have 
been  taken  against  the  real  estate  so  held  to  escheat  the  same, 
such  citizens  or  corporation,  grantee  as  aforesaid,  shall  hold  and 
may  convey  such  title  and  estate  indefeasible  as  to  any  right  of 
escheat  in  this  Commonwealth  by  reason  of  such  estate  having 
been  held  by  an  alien  or  corporation  not  authorized  to  hold  the 
same  by  the  laws  of  this  Commonwealth." 

154.  Proceedings  to  Escheat. 

Escheat  proceedings  may  be  begun  by  anyone  who  knows  of 
escheatable  property  informing  the  Commonwealth.  This  is 
done  by  notifying  the  auditor  general  in  writing,  signed  and 
witnessed  by  two  subscribing  witnesses.  The  informer,  as  he  is 
known,  receives  one-fourth  of  the  proceeds  of  the  real  or  per- 
sonal property  escheated,  less  costs  and  expenses.  He  must, 
however,  file  a  bond  to  refund  said  one-fourth  share  if  a  claim- 
ant subsequently  appears  and  establishes  his  claim  within  the  time 
limited  (Act  of  May  11,  A.  D.  191 1,  Sec.  4.  P.  L.  286).  Upon 
the  receipt  of  the  communication  the  auditor  general  appoints 
some  suitable  person  of  the  proper  county  as  escheator.     The 


190  Conveyancing  in   Pennsylvania. 

cscheator  conducts  the  proceedings  as  laid  down  by  the  Act  of 
May  2,  1889,  P.  L.  66  (This  act  sets  forth  the  full  procedure), 
as  amended  by  Act  of  May  II,  A.  D.  1911,  and  pays  over  the 
proceeds  of  the  escheated  property  to  the  State. 


CHAPTER  XL 
Wills. 

Page.  Page. 

ISS-  Wills.      Definition    of   and  163.  Form  of  Will 196 

Terms  thereof 191       164.  Codicil,  Form  of   197 

156.  Origin  of  Wills   191  165.  Widow's     Right     to     take 

157.  Modern    Requirements    of  against  the  Will   198 

Wills   192       166.  Right    of    Surviving   Hus- 

158.  Statute  of  Wills  in  Penn-  band     to     take     against 

sylvania  193  Will   199 

159.  Who    may    make    a    Will.  167.  Revocation  of  Wills.     Ex- 

Capacity    193  press  Revocation  200 

160.  Will  must  be  in  Writing..    194       168.  Implied  Revocation  201 

161.  Will  must  be  signed  at  the  169.  Probate  of  Wills 202 

end.     Execution  194       170.  Recital      in     a      Devisee's 

162.  When     Subscribing     Wit-  Deed 202 

nesses  are  necessary  . . .   195 

155.  Definition  of  Wills  and  of  Terms  Thereof. 

"A  will,"  says  Chancellor  Kent  (4  Kent  Com.  50),  ''is  a 
disposition  of  real  and  personal  property  to  take  effect  after  the 
death  of  the  testator."  Correctly  speaking,  a  will  of  personal 
property  is  called  a  testament.  A  will  of  real  estate  is  called  a 
devise  (Mitchell  on  Real  Estate  and  Convey.  513). 

The  person  who  makes  a  will  is  called  the  testator,  if  female, 
testatrix.  The  person  to  whom  the  will  gives  real  estate  is  called 
the  devisee;  and  what  he  receives,  a  devise.  One  who  receives 
personal  property  is  called  legatee,  and  what  he  receives,  legacy. 
The  apt  words  to  be  used  in  willing  real  estate  are  devise  and  for 
personal  property  bequeath.  Latterly,  however,  this  distinction 
has  not  been  maintained  and  it  has  become  customary  to  use 
the  form,  "I  give,  devise  and  bequeath,"  indiscriminately.  When 
a  will  is  written  wholly  by  the  testator,  it  is  called  a  holograph 
will.  A  codicil  is  a  supplement  to  a  will  altering  or  changing 
some  part  or  parts  of  it. 

156.  Origin  of  Wills. 

During  the  early  history  of  mankind  the  only  right  man  had  to 
acquire  and  possess  property  was  the  right  of  might.    Upon  his 

191 


192  Conveyancing  in   Pennsylvania. 

death,  whatever  he  possessed  or  occupied  was  by  law  of  nature 
open  to  any  who  choose  to  take  it,  and  so  the  next  occupant 
acquired  title.  Usually  the  next  occupant  was  a  member  of 
the  decedent's  family  for  the  obvious  reason  that  a  member  of 
the  family  was  usually  nearest  to  the  property  when  the  death 
occurred.  With  the  dawn  of  civilization  and  as  society  organ- 
ized, to  prevent  this  unseemly  scramble  and  its  attendant  dis- 
turbance, the  law  declared  who  should  be  entitled  to  the  dece- 
dent's possessions.  Later,  the  dying  person  was  given  the  right 
to  dispose  of  his  possessions  by  will. 

The  right,  therefore,  to  make  a  will  is  just  as  is  the  right  to 
inherit,  purely  a  matter  of  grace  on  the  part  of  organized  society 
which  we  call  the  state.  During  the  early  days  of  the  common 
-law  only  personal  property  could  be  willed.  Land  descended 
by  the  inexorable  laws  of  descent.  It  was  not  until  the  16th 
century,  after  the  advantage  of  willing  estates  in  land  became 
manifest,  from  the  practice  of  devising  equitable  estates  or  uses, 
that  the  parliament  of  England  passed  an  act  (Stat.  32,  Hen. 
VIII,  C.  I)  enabling  land  to  be  devised  by  will. 

157.     Modern  Requirements  of  Wills. 

Since  the  right  to  make  a  will  is  derived  from  the  permission 
given  by  the  state,  it  follows  that  each  state  may  prescribe  the 
manner  and  form  in  which  the  will  shall  be  made.  This  has 
been  done  by  the  states  enacting  various  statutes,  usually  termed 
statutes  of  wills.  Sometimes  the  question  arises  whether  the 
will  must  conform  to  the  law  of  the  state  in  which  the  testator 
is  domiciled,  or  to  that  of  the  state  where  the  land  lies.  The 
rule  is  settled  that  in  construing  devises  of  real  estate  the  law  of 
the  state  in  which  the  land  lies  governs  all  questions  concerning 
the  form  and  validity  of  the  will.  But  with  personal  property 
it  is  otherwise.  The  law  of  the  state  in  which  the  testator  lives 
governs  the  disposition  of  his  personal  property,  no  matter 
where  located. 

In  drawing  a  will  containing  a  devise  of  real  estate  care  should 
be  taken  to  conform  to  the  requirements  prescribed  by  the  state 
in  which  the  real  estate  is  situated.  Happily,  the  requirements 
of  the  various  states  do  not  differ  greatly.  Still  differences  exist, 
e.  g.,  in  Pennsylvania,  a  will  ordinarily  may  not  require  subscrib- 
ing witness.  In  New  Jersey  a  will  would  not  pass  title  to  real 
estate  unless  witnessed  by  two  subscribing  witnesses.    Generally 


Wills.  193 

speaking,  however,  it  will  be  found  that  a  will,  in  writing,  made 
by  an  adult  of  sound  mind,  and  signed  by  him  in  the  presence  of 
two  subscribing  witnesses,  will  be  effectual  to  pass  title  in  most 
any  jurisdiction. 

158.  Statute  of  Wills  in  Pennsylvania. 

The  earliest  statute  of  wills  in  Pennsylvania  was  the  act  of 
1705  (Sm.  L.  33),  which  was  afterwards  replaced  by  the  Act 
of  April  8,  1833  (P-  L.  249),  which  provided  in  effect  that  every 
person  of  sound  mind  might  by  will  dispose  of  his  or  her  real 
estate,  whether  held  in  fee  or  for  life,  and  whether  by  severalty, 
joint  tenancy  or  common,  and  also  his  or  her  personal  estate. 
Married  women  were  excepted  by  this  act,  but  later  were  given 
equal  right  to  will  (Acts  of  April  11,  1848,  P.  L.  537,  and  8th  of 
June,  1893,  Sec.  1,  P.  L.  344). 

The  statute  further  provides  that  the  will  shall  be  in  writing, 
signed  at  the  end  thereof.  Provision  is  also  made  by  the  same 
statute  for  the  making  of  a  nuncupative  will,  t.  c,  an  oral  will. 
As  personal  property  only  can  be  bequeathed  by  a  nuncupative 
will,  we  will  limit  ourselves  strictly  to  the  consideration  of  the 
wills  by  which  title  to  real  property  may  be  passed.  Let  us, 
therefore,  consider  the  essential  requirements  of  a  valid  will 
under  the  Pennsylvania  laws. 

159.  Who  May  Make  a  Will,  Capacity. 

Any  person,  whether  male  or  female,*  married  or  single, 
twenty-one  years  of  age  who  is  of  sound  mind  may  make  a  will. 

What  constitutes  soundness  of  mind  is  difficult  to  define  by 
general  rule,  nor  can  we  do  more  in  this  book  than  to  indicate 
generally  what  the  law  means.  Probably  the  best  known  rule 
is  that  laid  down  by  Judge  King,  in  the  case  of  Leech  v.  Leech, 
1  Phila.  244,  which,  reduced  to  simple  verbiage,  is : 

If  a  testator  at  the  time  of  making  the  will  knows  what  he  is 
doing,  knows  what  he  is  giving  and  knows  to  whom  he  is  giving, 
he  possesses  sufficient  capacity  to  make  a  will.  As  indicated  by 
this  rule,  something  more  than  mere  weakness  of  mind  must 

♦Possibly  it  should  be  noted  that  the  Act  of  March  13,  1815,  6  Sm.  L. 
286,  Sec.  10,  deprives  a  woman  who  has  been  divorced  for  adultery  and 
afterwards  cohabits  with  her  correspondent  on  whose  account  she  was 
divorced,  of  all  power  to  alienate  land,  whether  by  deeds,  wills  or  other- 
wise. 


194  Conveyancing  in   Pennsylvania. 

exist  before  the  will  can  be  set  aside  on  the  ground  of  want  of 
capacity  (See  also  McNitt's  Estate,  229  Pa.  71). 

Where  a  person  is  of  weak  mind,  especially  when  the  weak- 
ness results  from  a  great  age,  the  usual  allegation  of  those  who 
seek  to  set  the  will  aside  is  that  it  was  made  under  undue  influ- 
ence. Undue  influence  is  not  to  be  confounded  with  want  of 
capacity.  The  latter  means  the  testator  never  had  the  requisite 
qualifications  to  make  a  will ;  in  other  words,  was  of  unsound 
mind.  But  even  if  the  testator  had  the  requisite  capacity  a 
will  may  be  set  aside  if  made  under  undue  influence,  for  then 
it  is  not  really  the  testator's  will,  but  the  will  of  the  person  who 
dictated  it.  By  undue  influence  is  meant  not  mere  solicitation 
or  coaxing  but  such  influence  or  constraint  brought  to  bear  upon 
the  mind  of  the  testator  that  at  the  time  of  the  making  of  his  will 
he  was  not  a  free  agent  (McMahon  v.  Ryan,  20  Pa.  329;  Englert 
v.  Englert,  198  Pa.  326). 

160.  Will  Must  Be  in  Writing. 

The  statute  requires  that  the  will  must  be  in  writing.  Under 
certain  circumstances  the  law  allows  an  oral  or  nuncupative  will 
to  bequeath  personal  property.  Title  to  real  estate,  however, 
cannot  be  passed  by  a  nuncupative  will.  A  will  either  type- 
written, in  lead  pencil  (Smith  v.  Beales,  33  Pa.  Superior  Ct.  570) 
or  in  ink  is  considered  to  be  writing  within  the  meaning  of  the 
statute.  It  may  be  written  on  parchment  or  paper  or  any  sub- 
stance which  will  preserve  writing  permanently. 

161.  Will  Must  Be  Signed  at  the  End.     Execution. 

The  will  must  be  executed  by  the  testator  signing  at  the  end 
thereof  or  by  some  person  in  his  presence  and  by  his  express 
direction ;  unless  he  shall  be  prevented  by  the  extremity  of  his 
last  illness  (Act  of  April  8,  1833,  P.  L.  249,  Sec.  6).  It  has  been 
held  that  signature  by  mark  (Act  of  Jan.  27,  1848,  P.  L.  16)  or 
by  initials  is  a  valid  signing  within  the  meaning  of  the  act 
(Greenough  v.  Greenough,  11  Pa.  497).  However,  it  must  ap- 
pear that  it  was  intended  by  the  testator  as  a  complete  signature 
(Knox  Estate,  131  Pa.  220). 

The  question  has  often  arisen,  What  is  the  end  of  the  will? 
It  arose  in  a  case  (Baker's  Appeal,  107  Pa.  381)  where  a  will 
was  written  on  the  first  and  third  pages  of  a  sheet  of  fools- 
cap paper,  and  was  signed  and  sealed  by  the  testator  at  the 


Wills.  195 

foot  of  the  third  page  and  there  attested  by  subscribing  witnesses. 
On  the  fourth  page  was  an  unsigned  and  unattested  clause  which 
read  as  if  it  was  meant  to  form  part  of  the  body  of  the  will. 
The  court  held  that  although  the  instrument  was  not  signed  at 
the  end  thereof  in  point  of  space,  it  was  signed  at  the  end  of  the 
will  in  point  of  fact,  and  that  it  was,  therefore,  a  valid  will  under 
the  statute.  "The  end  of  a  will  is  the  logical  end  of  the  tes- 
tator's disposition  of  his  property  wherever  it  manifestly  ap- 
pears on  the  paper,  and  the  position  of  the  signature  with  regard 
to  the  bottom  or  end  of  the  page  is  only  evidence  as  to  whether 
the  testator  has  completed  the  expression  of  his  intention ; 
prima  facie  the  bottom  or  end  of  the  will  is  the  natural  place  for 
the  signature  to  show  the  full  expression  of  the  testator's  wishes, 
and  is,  therefore,  presumptively  the  right  place  for  it;  but  it  is 
only  evidence  and  must  give  way  to  evidence  of  a  different  in- 
tent" (Stinson's  Estate,  228  Pa.  480). 

Usually,  however,  it  is  unsafe  to  have  anything  written  after 
the  signature,  and  care  should  be  taken  to  avoid  it.  A  clause 
written  after  the  signature  if  it  has  no  bearing  on  the  contents  of 
the  rest  of  the  will  or  its  interpretation  will  be  ignored  ( Wikoff's 
Appeal,  15  Pa.  281).  But  if  it  bears  upon  tHe  will  or  is  essential 
to  its  interpretation  the  whole  will  is  considered  invalid  (Wine- 
land's  Appeal,  118  Pa.  37;  Taylor's  Estate,  230  Pa.  346). 

162.    When  Subscribing  Witnesses  Are  Necessary. 

A  will  whether  devising  real  estate  or  personalty  does  not  re- 
quire subscribing  witnesses  in  Pennsylvania  unless  it  contains  a 
devise  or  bequest  to  a  church  or  other  religious  or  charitable  use. 
In  such  case  the  law  provides  (Act  of  April  26,  1855,  P.  L.  329, 
Sec.  4)  that  the  will  must  have  two  disinterested  credible  sub- 
scribing witnesses  and  must  be  made  one  calendar  month  before 
the  decease  of  the  testator.  "The  purpose  of  this  act  is  plain  and 
was  to  make  reasonably  sure  that  testamentary  gifts  to  religion  or 
charity  were  the  result  of  deliberate  intent  of  the  testator  and 
were  not  coerced  from  him  while  in  a  weakened  physical  condition 
under  the  influence  of  the  doubts  and  terrors  of  impending  death" 
(Paxson's  Estate,  221  Pa.  98).  Says  the  court  in  Shoemaker's 
Appeal  (39  Pa.  C.  C.  24),  "A  disinterested  witness  under  this  sec- 
tion is  one  who  has  no  legal  interest  and  a  credible  witness  is  one 
not  disqualified  to  testify,  while  an  attesting  witness  means  a  sub- 
scribing witness."    "The  witness  need  neither  read  nor  have  the 


196  Conveyancing  in   Pennsylvania. 

contents  of  the  instrument  explained  or  read  to  him.  Neither  is  it 
indispensable  that  he  should  see  it  signed  by  the  testator  as  the 
latter  may  acknowledge  his  signature  in  the  witnesses'  presence 
and  such  witness  is  credible  under  this  section"  (Kessler's  Estate, 
221  Pa.  314). 

By  disinterested  person  the  law  is  said  to  mean  a  person  who 
has  no  pecuniary  interest,  whether  as  servant  or  employee  in 
the  church  or  charity  receiving  the  devise  (Paxson's  Appeal,  221 
Pa.  98;  Kessler  Estate,  221  Pa.  314;  Jeanne's  Estate,  228  Pa. 
537;  Stinson's  Estate,  232  Pa.  218).  The  recent  Act  of  June 
7,  191 1  (P.  L.  702),  further  defines  the  term  disinterested  wit- 
nesses to  mean  "A  disinterested  witness  being  a  witness  not  in- 
terested in  such  religious  or  charitable  use,  this  act  (meaning 
Act  of  April  26,  1855,  P.  L.  328),  not  being  intended  to  apply 
to  a  witness  interested  in  some  other  devise,  bequest  or  gift  in 
the  same  instrument."  But  this  Act  of  June  7,  191 1,  has  no  retro- 
active effect  and  does  not  apply  to  a  will  executed  before  its  date 
(Leech's  Estate,  236  Pa.  58;  Kelly's  Estate,  236  Pa.  54). 

While,  therefore,  subscribing  witnesses  are  not  necessary  ex- 
cept in  the  instance  set  forth  above,  it  is  earnestly  recommended 
that  whenever  a  will  be  drawn  to  have  two  disinterested  subscrib- 
ing witnesses.  This,  because  the  law  of  some  other  states  may 
require  it,  and  the  testator  may  have  or  may  thereafter  acquire 
title  to  land  in  such  other  states. 

163.    Form  of  Will. 

No  set  form  of  words  is  essential  to  the  validity  of  a  will. 
No  particular  words  are  necessary.  All  that  is  required  is  that  the 
intention  of  the  testator  be  made  clear.  Yet,  nevertheless,  an  in- 
experienced conveyancer  ought  to  hesitate  to  draw  a  will  unless 
it  be  of  the  simplest  kind.  Where  the  testator  desires  to  create 
trusts  and  to  give  limited  estates  with  remainders,  it  is  better 
practice  to  consult  an  attorney.  After  all,  it  is  not  the  province 
of  a  modern  conveyancer  to  draw  such  a  will  and  untold  litiga- 
tion may  be  avoided  by  his  refusal  to  do  so.  However,  a  simple 
will,  such  as  the  form  herein  set  forth,  any  one  can  draw  with- 
out compunction: 

Last  Will  and  Testament. 

I,  Abram  Jones,  residing  at  1342  Blank  Street,  Philadelphia, 
Pa.,  being  of  sound  and  disposing  mind,  memory  and  under- 


Wins.  197 

standing,  do  make,  publish  and  declare  the  following  as  and  for 
my  last  will  and  testament,  hereby  revoking  any  and  all  wills  by 
me  at  any  time  heretofore  made. 

First :  I  direct  that  all  my  just  debts  and  funeral  expenses  be 
paid  as  soon  as  conveniently  can  be  after  my  decease. 

Second :  I  give,  devise  and  bequeath  to  my  son  John  my  gold 
watch  and  chain. 

Third:  All  of  the  rest,  residue  and  remainder  of  my  estate, 
whether  real,  personal  or  mixed,  and  wheresoever  situate,  I  give, 
devise  and  bequeath  unto  my  beloved  wife  Rebecca  Jones,  abso- 
lutely and  forever. 

Lastly:  I  hereby  designate,  constitute  and  appoint  my  said 
wife  Rebecca  Jones  to  be  the  executrix  of  this  my  last  will  and 
testament. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  seal  this 
first  day  of  September,  A.  D.  1912. 

Abram  Jones.     (Seal). 

Signed,  sealed,  published  and  declared  by  the  testator  as  and 
for  his  last  will  and  testament  in  our  presence,  who,  in  his  pres- 
ence and  in  the  presence  of  each  other  and  at  his  request,  have 
hereunto  subscribed  our  names  as  witnesses. 

John  Doe. 

Adam  Roe. 

In  devising  real  estate,  words  of  inheritance  («.  e.,  heirs) 
need  not  be  added  to  the  name  of  the  devisee,  as  in  the  case 
of  a  deed  (See  Par.  54  d).  The  words,  "give,  devise,  and  be- 
queath to  John  Smith  absolutely  and  forever"  will  convey  a  fee. 
The  real  estate  devised  need  not  be  described  by  metes  and 
bounds.  The  number  of  the  street  in  a  city  is  sufficient.  Any 
description  which  will  identify  the  land  intended  to  be  given  is 
enough.  The  residuary  clause  which  is  that  clause  beginning 
with  the  words,  "All  the  rest,  residue  and  remainder  of  my 
estate,"  etc.,  when  drawn  broadly  as  set  forth  in  the  foregoing 
form,  will  operate  to  pass  a  fee  to  any  real  estate  and  all  personal 
properly  not  specifically  devised  or  bequeathed  before.  The  will 
speaks  not  from  the  time  of  its  date  but  from  the  time  of  the 
testator's  death.  Thus,  if  the  testator  acquired  real  estate  after 
the  date  of  the  will  it  would  nevertheless  pass  to  devisees  in 
accordance  with  the  terms  of  said  will. 

164.     Codicil,  Form  of. 

Sometimes  it  happens  that  a  testator  desires  to  change  a  single 
clause  or  bequest  in  his  will  without  changing  the  rest  of  k. 
This  is  done  by  a  writing  executed  similar  to  the  will,  which 


198  Conveyancing  in   Pennsylvania. 

recites  its  purpose  and  then  makes  the  change.  The  codicil  need 
not  be  in  any  particular  set  form  of  words.  A  convenient  form 
is  as  follows: 

Codicil. 

I,  Abram  Jones,  of  Philadelphia,  Pa.,  having  made  my  last  will 
and  testament  dated  the  first  day  of  September,  A.  D.  1912, 
whereby  I  bequeath  to  my  son  John  Jones  my  gold  watch  and 
chain.  Now,  therefore,  I  do  hereby  revoke  the  said  legacy  as 
given  by  my  said  will  and  hereby  give  said  gold  watch  and  chain 
to  my  son  Philip  Jones.  In  all  other  respects  I  do  hereby  ratify 
and  confirm  my  said  will. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  seal  this 
30th  day  of  September,  A.  D.  191 2. 

Abram  Jones.     (Seal.) 

Signed,  sealed,  published  and  declared  by  the  said  Abram 
Jones,  as  and  for  a  codicil  to  his  last  will  and  testament  in  the 
presence  of  us,  who,  in  his  presence  and  in  the  presence  of  each 
other,  have,  at  his  request,  subscribed  our  names  as  witnesses 
thereto. 

John  Doe.  (Seal.) 

Richard  Roe.     (Seal.) 

The  effect  of  a  codicil  is  to  confirm  and  republish  the  will  as 
of  the  date  of  the  codicil  in  all  respects  except  as  altered  by  the 
codicil  (Davis'  Estate,  27  Montg.  [Pa.]  31;  Gilmour's  Estate, 
154  Pa.  523;  Kelly's  Estate,  236  Pa.  54).  A  second  codicil  may 
be  added  after  the  first,  and  so  on.  The  codicils  should  be  kept 
with  the  will  and  are  probated  with  it. 

165.    Widow's  Bight  to  Take  Against  the  Will. 

A  father  may  disinherit  his  children  by  his  will  without  making 
any  provision  for  them  whatever,  and  give  his  entire  estate  to 
strangers.  But  a  husband  cannot  by  will  deprive  his  widow  of 
the  provision  given  by  the  law  to  the  wife  in  lieu  of  dower.  In 
other  words,  the  wife  has  a  right  to  take  against  the  will  of  her 
husband  the  same  share  of  his  property  she  would  have  received 
had  he  died  intestate  (See  ante,  Par.  134,  Sec.  1,  Clauses  1,  2). 
That  is,  if  the  husband  dies  leaving  no  children  the  wife  may 
claim  $5,000  and  half  of  the  remaining  personal  property  and  half 
of  the  real  estate  absolutely  and  for  life,  respectively.  If  children, 
one-third  of  the  personal  property  absolutely  and  one-third  of  the 
real  estate  for  life.  This  by  reason  of  the  Act  of  April  20,  1869, 
P.  L.  77,  which  provides  that  if  the  widow  elects  to  take  against 


Wills.  199 

the  will  of  her  husband  she  shall  be  entitled  to  such  interest  in 
the  real  estate  of  her  deceased  husband  as  the  widow  of  dece- 
dents dying  intestate  are  entitled  to  under  the  existing  laws  of 
this  Commonwealth.* 

Should  the  widow,  however,  accept  the  provision  made  by  her 
husband  in  his  will  she  is  held  to  take  it  in  lieu  of  her  dower. 
So  that  now  the  widow  may  take  her  choice  between  what  the 
husband  leaves  her  in  his  will  and  what  she  would  have  received 
had  he  died  intestate.  By  the  Act  of  April  21,  191 1  (P.  L.  79), 
the  surviving  widow  or  husband  must  signify  their  election  in 
writing  to  the  executor  or  administrator  of  the  will,  which  must 
be  recorded  at  the  recorder  of  deeds'  office  before  any  payment 
from  the  estate  is  made  to  the  widow  or  surviving  husband. 
Should  the  widow  elect  to  take  against  her  husband's  will  and 
her  share  would  destroy  the  testator's  testamentary  scheme,  then 
the  whole  will  falls.  If,  however,  she  can  be  paid  or  given 
her  share  without  effecting  the  rest  of  the  devises  or  bequest 
then  only  that  part  containing  the  provision  for  her  falls. 

166.    The  Right  of  Surviving  Husband  to  Take  Against  the  Will. 

The  husband  likewise  cannot  be  cut  off  by  the  will  of  his  wife. 
He  may  take  against  the  will  his  curtesy,  i.  e.,  the  right  to  enjoy 
all  her  real  estate  for  life.  He  has  a  further  choice  of  the  Act 
of  May  4,  1855  (P.  L.  430),  which  gives  him  the  reciprocal  right 
to  take  against  his  wife's  will  such  share  and  interest  in  her  real 
and  personal  estate  as  she  can  when  surviving  elect  to  take  against 
his  will  in  his  estates.  This  means  that  he  is  entitled  to  take 
against  his  wife's  will  the  $5,000  provided  for  her  by  the  Act  of 
April  9,  1909,  P.  L.  87,  as  set  forth  in  the  preceding  paragraph 
(Moore's  Estate,  50  Pa.  Super.  76). f 

*In  the  recent  case  of  Guentheor's  Estate,  235  Pa.  67,  the  words  of  this 
act  "existing  laws"  of  this  Commonwealth  were  held  by  the  Supreme 
Court  to  mean  the  act  of  1833  as  amended  by  the  act  of  1909,  although 
probably  at  the  time  the  legislature  passed  the  act  of  1869  they  meant 
by  "existing  laws"  the  laws  then  existing,  to  wit,  the  act  of  1833.  The 
practical  effect  of  Guentheor's  Estate  is  that  unless  a  man  dies  leaving 
children  or  has  an  estate  over  $5,000  in  value  he  is  barred  from  making 
a  will. 

fThis  case  is  the  logical  sequence  of  Guentheor's  Estate  (supra),  and 
results  in  this  curious  condition ;  if  a  wife  owning  $5,000  worth  of  real 


200  Conveyancing  in   Pennsylvania. 

The  husband,  therefore,  has  three  choices.  First,  he  may- 
take  the  provision  of  the  will.  Second,  he  may  take  his 
curtesy,  that  is,  all  of  the  real  estate  for  life,  or,  Third,  he  can 
take  against  her  will  a  share  of  both  real  and  personal  estate 
equal  to  what  the  law  would  give  her  in  his  estate  against  his 
will.  His  election  must  also  be  in  writing  and  recorded,  as  in  the 
case  of  the  surviving  wife  (Act  of  April  21,  191 1,  P.  L.  79;  see 
Par.  165).  Here  also,  as  in  the  case  of  wife  if  the  husband's 
election  to  take  against  the  will  operates  to  destroy  the  testa- 
mentary scheme,  then  the  whole  will  falls. 

167.     Revocation  of  Wills.     Express  Revocation. 

Since  a  will  does  not  take  effect  until  the  death  of  testator  it 
follows  that  it  may  be  revoked  at  any  time  prior  to  testator's 
death.  A  will  may  be  revoked  either  by  express  act  of  the  tes- 
tator, in  which  it  is  called  an  express  revocation,  or  by  operation 
of  law,  in  which  case  it  is  termed  an  implied  revocation.  In 
Pennsylvania  (Act  of  April  8,  1833,  P.  L.  249),  provides  that 
wills  devising  real  estate  shall  not  be  revoked  except  by  some 

other  will  or  codicil  in  writing  or  other  writing declaring 

the  same  executed  and  proved  like  a  will,  or  by  burning,  cancel- 
ling or  obliterating  or  destroying  the  same  by  the  testator  him- 
self or  by  some  one  in  his  presence  and  by  his  express  direction. 
A  will  bequeathing  personal  properly  only,  must  be  revoked  in  the 
same  way,  unless  a  later  nuncupative  will  be  made.  It  is  a  good 
practice  in  drawing  a  will  to  put  in  a  clause  revoking  all  prior 
wills  (See  Form,  Par.  163),  although  not  strictly  necessary  since 
if  the  later  will  is  totally  inconsistent  with  the  prior  will  it  pre- 
vails and  the  prior  will  is  revoked.  If,  however,  not  totally  in- 
consistent the  prior  will  is  only  revoked  pro  tanto,  that  is,  only 
in  such  parts  as  are  inconsistent  with  the  last  will.  The  writing 
revoking  a  will  need  not  necessarily  be  a  will,  it  can  be  any 
writing  provided  it  is  executed  and  proved  like  a  will. 

Revoking  a  will  by  cancellation  or  obliteration  or  destruction 
means  cancelling  in  the  popular  sense.  Thus  scratching  out  or 
drawing  a  line  through  the  signature  (Evans'  Appeal,  58  Pa. 
238),  writing  the  word  cancelled  or  annulled  across  its  face,  or 

estate  dies  intestate  and  childless,  the  husband  would  under  the  intestate 
laws  be  entitled  only  to  all  the  real  estate  for  life.  But  if  she  made  a  will 
he  could,  under  this  decision,  take  against  the  will  all  the  real  estate  abso- 
lutely. 


Wills.  201 

tearing  it  up,  are  all  acts  of  revocation  (Evans'  Appeal,  58  Pa. 
238). 

168.     Implied  Bevocation. 

Marriage  or  subsequent  birth  of  child  not  provided  for  in  the 
will  operates  as  revocation  of  the  will  so  far  as  the  widow  or 
subsequently  born  child  or  children  is  concerned  (Act  of  April 
8,  1833,  P.  L.  249).  This  is  term  an  implied  revocation.  By 
the  terms  of  the  act  such  revocation  is  not,  however,  total,  but 
only  as  far  as  the  wife  or  after-born  child  is  concerned.  The 
testator  is  only  considered  to  have  died  intestate  as  to  wife 
married  or  the  child  born  after  the  making  of  the  will ;  the  rest 
of  the  will  is  good.  A  single  man  should,  after  his  marriage, 
immediately  have  executed  a  codicil  confirming  his  will  and 
should  execute  such  a  codicil  after  the  birth  of  each  child.  (For 
Form,  see  Par.  286).  All  that  is  required  relative  to  the  pro- 
vision for  an  unborn  child  is  that  the  testator  shall  have  the 
child  in  mind  and  shall  make  clear  his  intention  that  the  will 
shall  apply  to  it.  Any  provision  that  does  this  is  sufficient  and 
the  inquiry  whether  large  or  small,  equal  or  unequal,  vested  or 
contingent,  present  or  future,  is  irrelevant  and  outside  the  juris- 
diction of  the  court  except  so  far  as  it  tends  to  throw  light  on 
the  question  of  intention.  A  provision  as  follows :  "I  declare 
this  to  be  and  contain  my  last  will  and  testament  and  that  after- 
born  children  are  herein  provided  for"  is  sufficient  (Randall  v. 
Dunlap,  218  Pa.  210). 

The  above  Act  of  April  8,  1833,  P.  L.  249,  relating  to  after- 
born  children  applies  only  to  natural  born  children  and  has  no 
application  to  adopted  children.  A  child  adopted  after  the 
adopting  parent  executed  his  will  is  not  entitled  to  any  rights 
as  against  that  will  in  the  adopting  parent's  estate  (Goldstein  v. 
Hammell,  49  Superior  Ct.  39,  aff.  236  Pa.  305). 

A  will  may  also  be  impliedly  revoked  either  in  whole  or  in 
part  by  the  testator  conveying  away  the  property  devised  in  his 
lifetime.  Thus  A,  by  his  will,  devised  a  house  to  B;  later  he  sells 
the  house;  the  devise  to  B  is  thereby  impliedly  revoked.  If  the 
testator  has  conveyed  away  so  much  of  his  real  estate  during 
his  lifetime  so  that  it  is  impossible  to  distribute  the  balance 
in  accordance  with   his   will,   i.   e.,   if  his   whole  testamentary 


202  Conveyancing  in  Pennsylvania. 

scheme  is  destroyed  the  whole  will  is  revoked  except  possibly 
as  to  the  appointment  of  an  executor,  if  there  is  any  need  of  one 
(Cooper's  Estate,  4  Pa.  88). 

169.  Probate  of  Wills. 

By  probate  of  wills  is  meant  the  proving  of  the  will  to  be  the 
last  will  and  testament  of  the  decedent  before  the  proper  officer. 
The  officer  before  whom  the  will  is  proved  is  called  the  surrogate 
in  some  states.  In  Pennsylvania  he  is  called  the  register  of  wills. 
The  will  is  probated  by  taking  it  to  the  register's  office,  who  takes 
the  affidavits  of  the  subscribing  witnesses  that  they  were  present 
and  did  see  the  testator  execute  the  will.  If  there  are  no  sub- 
scribing witnesses  any  two  persons  who  are  familiar  with  the 
decedent's  signature  can  be  called  to  swear  to  its  authenticity. 
If  the  subscribing  witnesses  are  dead  or  permanently  beyond  the 
jurisdiction  two  witnesses  must  be  produced  who  can  identify 
the  signature  of  the  subscribing  witnesses.  The  register  then 
issues  letters  testamentary  to  the  executor,  which  constitutes  his 
authority  to  act  as  such. 

A  will  must  be  offered  for  probate  within  three  years  from 
the  date  of  the  death  of  the  testator  or  it  will  be  void  and  of  no 
effect  against  a  bona  fide  conveyance  or  mortgage  of  the  real 
or  personal  estate  of  the  decedent  duly  recorded  before  the  date 
of  the  offering  of  said  will  for  probate  (Act  of  April  1,  1909, 

P.  L.  79)- 

The  will  should  be  probated  in  the  county  where  the  decedent 
resided,  or  if  he  had  no  particular  residence  in  the  county  where 
the  principal  part  of  his  estate  is  located.  The  probate  of  wills 
is  conclusive  as  to  real  estate  unless  contested  after  five  years 
after  date  of  probate.  This  limitation  is  absolute,  there  being 
no  exception  in  favor  of  persons  under  disabilities  such  as 
minors,  etc. 

170.  Recital  in  a  Devisee's  Deed. 

When  a  devisee  who  acquires  title  by  will  desires  to  convey, 
his  deed  should  contain  a  recital  setting  forth  that  he  gained 
title  by  will  referring  to  the  page  and  book  where  the  will  is 
registered  and  preferably  setting  forth  the  extract  from  the 
will.    The  following  will  serve  as  a  guide: 

Being  the  same  premises  which  Stephen  Thompson 
by  indenture  bearing  date  the  24th  day  of  April,  A.  D. 


Wills. 


1898   and  recorded  in  the  Office  for  the  Recording  of 

EeeeedSBooakdT  VthNCity  ^  C°Unt/  °f  ™adelphfa  in 
ueed  Hook  J.  V.,  No.  144,  page  76,  etc.,  granted  and 

conveyed  unto  Abram  Jones  in  fee.     And  whereas   the 

ol£bra?  Jn"eS  depfted  this  ,ife  °"  the  nrs  day  or 
October,  A  D  1912,  having  first  made  and  published 
his  last  will  and  testament  in  writing  bearing  date  the 

Offioedayf°,lS?tember'  f  D-  1(>12>  a"d  -corded  n  L 
Office  of  the  Register  of  Wills  in  and  for  the  City  and 
County  of  Philadelphia  in  Will  Book  No.  320"  pa«  380 

"Third  WAnh,hie  *?  Pr°Vi,ded  inter  aHa  -Pfobllo3wT; 
JtxZ  u!l  e  ?St'  reSldue'  and  remainder  of  my 
estate,  whether  real,  personal  or  mixed,  I  give    devise 

lmdlv'qUHe?th  Um°^my  bd0Ved  Wife  Rebecca  Jonis  abso- 
lutely and  forever,"  etc.,  etc.     Wherein  and  whereby  sa°d 

JoneTinTe        PremiSCS  beCamC  VCSted  in  Said  Rebecca 


PART  V. 

Searches,  Real  Estate  Broker,  Settlements,  Etc 

CHAPTER  XII. 

Searches. 

Page.  Page. 

171.  Searches,  Necessity  for  ..  204       181.  Criminal     Court     Judg- 

172.  How     Records     are     In-  ments  210 

dexed  205  182.  United      States      Court. 

173.  Kinds  of  Searches  206  Judgments    21  r 

174.  Conveyance  Searches   ....  206  183.  Liens  of  Decedents'  Debts  2IT 

175.  Registry  Bureau   207  184.  Other     Liens,     Mechanics 

176.  Encumbrance       Search.  and  Municipal  Liens  ...  212 

Mortgages   207       185.  Locality    Index    in    Phila- 

177.  Encumbrance       Search.  delphia 212 

Judgments   208       186.  Taxes  and  Unfiled  Liens. .  213 

178.  Where      to      Search      for  187.  Assignment    of    Mortgage 

Judgment  Liens  209  Searches  213 

179.  Appellate      Court      Judg-  188.  Examination  of  Property.  214 

ments  209       189.  Synopsis  of  how  to  Search  214 

180.  Common       Pleas       Court,  190.  Brief  or  Abstract  of  Title, 

Judgments   210  Form  216 

171.     Searches,  Necessity  for. 

By  searches  we  mean  the  examination  of  the  title  of  vendor 
or  prospective  mortgagee  in  order  to  ascertain  whether  it  is 
good,  clear  and  free  of  incumbrance.  The  ability  to  make  a  sat- 
isfactory search  and  brief  of  title  was  formerly  one  of  the  most 
essential  requirements  of  a  good  conveyancer.  In  Philadelphia 
and  the  larger  cities  of  the  State  of  Pennsylvania  few  convey- 
ancers nowadays  search  the  title  themselves.  Instead,  it  is  done 
by  the  title  insurance  companies  (See  Par.  200  infra),  who  make 
a  special  business  of  searches  which  they  insure  or  guarantee.  In 
the  smaller  towns  and  rural  regions  of  the  State,  however,  con- 
siderable title  searching  is  still  done  by  the  conveyancers,  so 
that  it  is  deemed  well  to  devote  a  chapter  to  explaining  the 
method  of  searching. 

204 


Searches. 


20- 


172.     How  Records  Are  Indexed. 

First,  a  word  as  to  the  arrangement  of  the  indexes  which  must 
be  examined  in  searching  title.  The  recorder  of  deeds'  office 
is  located  at  the  county  seat  and  contains,  besides  the  deed  books, 
mortgage  books,  etc.,  a  series  of  books  termed  indexes.  Deed 
indexes,  mortgage  indexes,  miscellaneous  indexes,  charter  in- 
dexes, etc.  Taking  the  deed  index  as  an  example,  we  find  that 
deeds  are  indexed  twice,  once  under  the  name  of  the  grantor, 
called  the  direct  or  grantor  index,  and  once  under  the  name  of 
the  grantee,  called  the  ad  sectum,  or  grantee  index.  The  index- 
ing is  ingenious  and  is  done  in  this  way.  There  is  for  the  grant- 
or's index  one  book  for  each  letter  of  the  alphabet,  and  each 
book  is  divided  into  twenty-six  subdivisions,  each  subdivision 
lettered  in  alphabetical  order,  beginning  with  the  letter  A.  The 
initial  letter  of  the  grantor's  surname  fixes  the  book  in  which  it 
is  to  be  found,  and  the  initial  letter  of  the  Christian  name 
fixes  the  subdivision  of  that  book  in  which  the  name  is  to  be 
found.  Thus,  in  order  to  find  the  name  Andrew  Gallagher,  you 
take  down  index  book  "G"  and  turn  to  the  part  under  the  letter 
"A."  In  that  part  you  will  find  every  person's  name  whose  last 
name  begins  with  "G"  and  first  name  with  "A."  Look  through 
these  names  until  you  come  to  the  name  you  seek.  Having  found 
the  name  you  will  see  the  following  entry: 


Direct  or  Grantor  Index. 


1912.    E.  L.  T. 


Grantor. 


Gallagher 


Andrew 


Grantee. 
P.  F.  Smith. 


The  first  column  is  the  date,  being  the  year,  month  and  day 
when  the  deed  was  recorded.  Then  follows  the  book,  number 
and  page.  In  Philadelphia,  by  custom,  the  recorder  of  deeds' 
books  are  designated  by  the  initial  letters  of  the  recorder's  name. 
Thus,  all  deeds  recorded  during  the  term  of  the  present  recorder, 
Hon.  Ernest  L.  Tustin,  are  recorded  in  books  bearing  the  letters 
E.  L.  T.     Next  follows  the  name  of  the  grantor,  surname  first, 


206 


Conveyancing  in   Pennsylvania. 


then  the  Christian  name.  Finally,  the  name  of  the  grantee.  The 
arrangement  of  the  grantee  index  is  practically  the  same,  though, 
of  course,  the  grantee's  name  would  appear  before  the  grantor's, 
as  follows: — 

Ad  Sectum  or  Grantee  Index. 
1912.    E.  L.  T. 


Date. 

Book. 

Page. 

Grantee. 

Grantor. 

June 

20 

7i 

32 

Smith 

Peter  F. 

A.  Gallagher. 

All  of  the  modern  indexes,  both  mortgagor  and  mortgagee 
as  well  as  judgment  indexes  of  the  prothonotary's  office  follow 
this  arrangement. 

173.     Kinds  of  Searches. 

At  the  outset  it  should  be  remembered  that  a  title  may  be  bad 
because  of  its  doubtful  origin,  as  where  a  man  purports  to  convey 
title  to  land  which  he  never  owned.  On  the  other  hand,  while  it 
may  be  without  defect  as  far  as  "derivation  and  origin  is  con- 
cerned, it  may  still  be  bad  because  it  is  so  encumbered  by  mort- 
gages and  other  liens  as  to  be  practically  valueless.  Thus  searches 
are  naturally  divided  into  two  kinds  or  classes.  A  conveyance 
search,  which  is  a  search  to  ascertain  the  sources  from  which  a 
grantor  derived  his  title,  and  an  encumbrance  search  made  to 
ascertain  whether  a  title  is  subject  to  any  mortgages,  judgments 
or  other  liens. 


174.    Conveyance  Searches. 

Conveyance  searches  are  made  at  the  recorder  of  deeds'  office 
by  examination  of  the  grantor  and  grantee  index.  In  Pennsyl- 
vania the  source  of  all  title  is  a  grant  by  William  Penn,  or,  lat- 
terly, the  State.  Usually  the  recital  in  the  deeds  will  provide  a 
rapid  method  of  reaching  the  source  of  title  and  making  a  rough 
brief  without  the  aid  of  the  index.  Should  a  recital,  however, 
be  missing,  recourse  must  be  had  to  the  index  to  supply  the  miss- 
ing link.    After  ascertaining  the  source  of  title  to  be  proper,  search 


Searches.  207 

for  adverse  conveyances  against  every  person  whose  name  appears 
in  the  chain  of  title  from  a  time  prior  to  his  acquisition  of  title 
until  six  months  after  the  recording  of  the  deed,  as  the  vendor 
may  have  conveyed  to  another  purchaser  by  deed  executed  outside 
of  this  State.  Search  against  the  present  owner  from  the  time 
he  acquired  title  to  date.  The  search  should  not  only  be  made 
against  the  owners  of  the  fee  but  against  all  having  an  interest 
therein,  such  as  executors,  administrators,  trustees,  assignees, 
receivers,  guardians,  committee  of  lunatics,  etc.  Also,  against 
such  as  have  a  power  of  sale.  Search  now  in  the  office  of  the 
courts  of  common  pleas  for  possible  sheriff's  sales,  by  which 
the  owner  may  have  lost  title.  Since  1893  (Act  of  May  24, 
l893>  P-  L.  127),  however,  sheriff's  sales  are  now  recorded  in  the 
recorder  of  deeds  office,  indexed  both  under  name  of  grantee 
and  the  person  whose  title  was  divested  by  the  sale.  Search  also 
at  the  office  of  the  clerk  of  the  United  States  courts  for  sales 
by  the  United  States  marshal,  and  for  possible  bankruptcy  of 
owner. 

Searches  of  title  for  ground  rents  are  made  as  in  the  case  of 
conveyance  searches,  and  since  they  are  real  estate  they  must  be 
searched  also  as  encumbrances  and  liens. 

175.  Search  at  Registry  Bureau. 

In  Philadelphia,  by  Act  of  March  14,  1865  (P.  L.  320),  all 
deeds  must  be  registered  before  being  recorded.  This  is  done  at 
the  registry  bureau  and  forms  an  additional  means  of  verifying 
the  title  of  a  vendor.  Search  should,  therefore,  be  made  at  the 
registry  bureau  which  is  established  in  Philadelphia,  and  since 
1899,  m  all  countries  having  a  population  over  500,000  and  since 
1901  in  all  cities  of  the  third  class.  In  Philadelphia,  the  registry 
bureau  is  a  department  of  the  city  survey  bureau. 

176.  Encumbrance  Search,     (a)  Mortgages. 

Having  found  the  title  to  be  without  defect  the  next  step  is  to 
see  if  it  is  encumbered.    Search  first  for  possible  mortgages. 

Search  for  mortgages  is  made  at  the  recorder  of  deeds'  office. 
The  mortgages  are  indexed  in  a  separate  index  called  the  mort- 
gage index.     Search  should  be  made  in  this  index  as  follows : 

Search  in  the  mortgage  index  against  every  name  in  the  chain 
of  title  back  to  time  prior  to  the  year  1830,  for  prior  to  that  date 
a  sheriff's  sale  discharged  mortgages.     Before  1887,  an  orphans' 


208  Conveyancing  in   Pennsylvania. 

court  sale  also  discharged  a  mortgage,  so  that  if  you  come  to 
orphans'  court  sale  before  that  time  you  need  go  no  further. 
Since  1830  a  sheriff's  sale  will  only  discharge  a  mortgage  upon 
its  foreclosure,  or  if  it  be  not  prior  to  all  other  liens  except  other 
mortgages,  ground  rents,  purchase  money  due  the  Common- 
wealth, municipal  claims  and  taxes. 

Of  course,  in  searching  for  mortgages  against  persons  in  the 
chain  of  title  you  need  only  search  against  any  one  of  them  from 
the  time  he  conveyed  title  back  to  the  time  he  took  title.  Where 
the  present  owner  against  whom  the  search  is  being  made  took 
title  within  sixty  days  there  is  a  possibility  that  a  purchase  money 
mortgage  may  be  recorded  later,  for .  a  purchase  mortgage  has 
sixty  days  to  be  recorded  in  (See  Par.  88).  In  such  case  the 
declaration  of  the  present  owner  must  be  secured  as  well  as  of  his 
immediate  grantor  that  no  purchase  money  mortgage  formed  part 
of  the  consideration. 

All  assignments  of  mortgages  and  any  proceedings  or  actions 
commenced  therein  will  be  found  noted  on  the  margin  of  the 
mortgage  record  in  the  mortgage  books. 

177.     Encumbrance  Search,     (b)  Judgment  Liens. 

Having  ascertained  the  title  to  be  good  and  marketable  and 
free  from  any  mortgage  liens  it  is  necessary  to  prosecute  a 
further  search  in  order  to  ascertain  whether  there  are  any  judg- 
ment liens  against  the  property.  A  judgment  is  a  decree  of  a 
court  of  competent  jurisdiction  determining  that  the  one  person 
is  indebted  to  another  in  the  amount  stated.  The  party  in  whose 
favor  a  judgment  is  rendered  can,  if  it  is  not  paid,  proceed  to 
sell  the  other's  property.  A  judgment  by  law  (Act  of  March  21, 
1772,  1  Sm.  L.  390,  Sees.  2,  3)  is  a  lien  against  all  of  the  real 
estate  of  the  person  against  whom  it  is  entered  from  the  time  of 
its  entry.  It  is  not  a  lien  against  personal  property,  but  against 
real  estate  only.  Its  lien  binds  any  freehold  estate  in  land, 
whether  a  fee,  life  estate  (Hoffman's  Estate,  2  Pears.  317),  or 
curtesy  (Beard  v.  Dietz,  1  Watts  309),  whether  absolute  or  in 
common.  It  binds  a  ground  rent  but  not  a  leasehold,  which  is  a 
chattel  (Krause  Appeal,  2  Whart.  398),  nor  a  mortgage,  which 
is  also  personal  property.  A  judgment  binds  all  of  defendant's 
real  property  and  interests  therein  unless  it  be  restricted  to  a  par- 
ticular piece  of  real  estate  by  agreement  filed  of  record,  signed 
by  the  party  in  whose  favor  it  is  rendered  (Hendrick  v.  Thomas, 


Searches. 


209 


106  Pa.  327).  So,  too,  the  lien  of  a  judgment  may  be  released  as 
to  a  particular  part  of  a  party's  real  estate  without  effecting  its 
lien  against  the  rest  (Kirk  Appeal,  87  Pa.  243).  It  is  only  a 
lien  upon  the  interest  in  real  estate  owned  by  the  defendant 
at  the  time  of  its  entry  and  does  not  effect  real  estate  sold 
before  its  entry  (Bitting's  Appeal,  17  Pa.  211),  or  acquired 
thereafter  (Kemmerer  v.  Tool,  78  Pa.  147).  To  make  it  a  lien 
on  after  acquired  real  estate,  a  scire  facias  must  be  issued  to 
revive  it  as  of  a  later  date  (Clippinger  v.  Miller,  1  P.  &  W.  64; 
Stewart  v.  Peterson  Exec'rs,  63  Pa.  230).  The  duration  of  the 
lien  of  a  judgment  is  five  years.  At  the  expiration  of  that  time 
it  may  by  appropriate  proceedings  be  revived  for  another  period 
of  five  years,  and  so  on. 

178.    Where  to  Search  for  Judgment  Liens. 

Judgments  are  rendered  by  various  courts,  but  are  only  a 
lien  when  entered  by  the  following  specified  courts:  Supreme 
Court,  Superior  Court,  Common  Pleas  Court,  Quarter  Sessions 
Court— Oyer  and  Terminer,  United  States  Courts.  Except  as 
hereinafter  mentioned,  a  United  States  Court  judgment  to  be  a 
lien  must  be  entered  in  the  county  where  the  land  lies.  It  may, 
however,  be  transferred  to  any  other  county  by  filing  an  exemplifi- 
cation or  transcript  thereof.  Since  a  judgment  is  only  a  lien  for 
five  years  it  is  only  necessary  to  prosecute  the  search  for  that 
period.  Search  against  every  person  who  has  held  title  during 
the  five  years  prior  to  the  times  of  making  the  search.  Judg- 
ments of  magistrates'  court  are  not  liens  against  the  land.  To 
become  liens,  transcripts  thereof  must  be  filed  in  the  Common 
Pleas  Courts. 

179.     Appellate  Courts'   Judgments. 

While  few  judgments  are  entered  in  the  Supreme  Court  which 
are  not  also  entered  in  the  Common  Pleas  Courts,  good  practice 
(Directions  for  Making  Searches,  by  Eli  Kirk  Price,  edited  by 
Edw.  F.  Pugh,  Dunlop's  Forms  1071)  requires  a  separate  search 
to  be  made  there.  The  search  in  the  Supreme  Court  must  be 
made  at  the  office  of  the  prothonotary  of  said  court.  No  sep- 
arate search  need  be  made  in  the  Superior  Court,  since  the  law 
provides  that  no  judgment  thereof  shall  become  a  lien  until  the 
record  is  returned  to  the  court  below  (common  pleas  court)  and 
entered  upon  the  proper  dockets  (Act  of  June  25,  1895,  P.  L.  219, 


2IO 


Conveyancing  in   Pennsylvania. 


Sec.  8).    Thus,  any  judgment  entered  in  the  Superior  Court  will 
be  disclosed  when  search  is  made  in  the  common  pleas  court. 

180.     Common  Pleas  Judgments. 

By  far  the  greatest  number  of  judgments  are  entered  in  the 
courts  of  common  pleas.  Search  must,  therefore,  be  made  in  the 
common  pleas  of  the  county  wherein  the  land  lies.  The  index 
of  judgments  is  to  be  found  at  the  office  of  the  prothonotary  of 
the  common  pleas  courts,  is  called  the  judgment  index.  This 
index  is  arranged  similar  to  the  indexes  of  the  recorder  of  deeds' 
office  (See  Par.  172).  If  searching  against  Andrew  Gallagher, 
take  the  G  book  and  turn  to  the  subdivision  of  the  A's.  The 
index  will  show  besides  the  name  of  the  defendant,  the  name  of 
the  party  in  whose  favor  the  judgment  was  entered,  his  attorney 
and  the  amount  of  damages  if  liquidated  (Note  a  judgment  is 
a  lien  from  the  date  of  its  entry  regardless  whether  the  amount 
of  damages  have  been  liquidated  or  not),  together  with  the  name 
of  the  court,  and  term  and  number  of  the  proceedings.  The  entry 
will  appear  as  follows : 


Defendant. 

Plaintiff. 

Court. 

Term 

No. 

Attv. 

Date. 

Amount. 

Gallagher,   Andrew 

Robinson.  J. 

1 

J. 12 

1478 

Smith 

Jane  8,  1912 

$2,000.00 

If  the  judgment  has  been  paid,  released  or  otherwise  satisfied, 
the  fact  will  be  noted  in  the  first  column  which  in  the  above  entry 
is  blank.  If  more  detailed  information  is  wanted,  the  name,  term 
and  number  of  the  court  will  furnish  a  clue  to  the  proper  docket, 
which  sets  forth  the  proceedings  in  detail.  Both  prothonotary 
and  recorder  of  deeds  of  Philadelphia  county  will  issue  certifi- 
cates of  search  if  asked  to,  although  they  are  not  authorized  or 
required  to  do  so  by  any  act  of  assembly.  When  they  issue 
such  certificates  they  are  liable  on  their  official  bond  for  any 
error  to  the  person  to  whom  certificates  are  issued  (McCarher  v. 
Commonwealth,  5  W.  &  S.  21). 

181.     Criminal  Court  Judgments. 

The  Courts  of  Quarter  Sessions  and  Oyer  and  Terminer  are 
criminal  courts.  Judgments  of  fines,  costs  and  forfeited  bail 
bonds  are  entered  in  these  courts  and  become  a  lien  from  the 


Searches.  211 

date  of  their  entry.  In  the  Quarter  Sessions  Courts  are  also 
entered  road  damages.  The  judgment  index  for  these  courts  is 
kept  at  the  office  of  the  clerk  of  quarter  sessions  and  search  must 
be  made  there. 

182.  United  States  Court. 

Up  until  191 1  there  were  two  federal  courts  of  original  juris- 
diction, the  District  Court,  whose  jurisdiction  was  principally 
bankruptcy  and  criminal,  and  Circuit  Court,  whose  jurisdiction 
was  civil.  Now  the  jurisdiction  of  both  have  been  consolidated 
into  one  court,  termed  the  District  Court,  the  geographic  jurisdic- 
tion of  which,  like  its  predecessors,  embraces  many  different 
counties  (Judicial  Code,  Act  of  March  31,  191 1,  Chapter  231, 
Sec.  1,  Federal  Statute  Supp.  132).  The  liens  of  the  United 
States  Courts  before  and  since  the  consolidation  are  liens  upon 
land  situated  in  the  counties  in  which  the  court  sits,  upon  the 
entry  of  the  judgment.  But  in  other  counties  of  the  district, 
not  until  a  transcript  thereof  is  filed  in  the  Common  Pleas  Court 
of  that  county.  Thus  a  judgment  entered  in  the  United  States 
District  Court  for  the  Eastern  District  of  Pennsylvania  would 
be  a  lien  on  land  in  Philadelphia  county  from  the  time  of  its 
entry,  because  the  United  States  court  sits  there.  To  make  this 
judgment  a  lien  in  Delaware  county,  where  the  court  does  not 
sit,  a  transcript  must  first  be  filed  at  the  prothonotary's  office 
of  Delaware  county,  who  will  index  it  in  his  judgment  index. 
To  make  the  search,  if  necessary,  in  the  United  States  courts 
the  judgment  index  will  be  found  at  the  clerk's  office.  Until 
1916  it  will,  of  course,  still  be  necessary  to  search  the  indexes 
of  both  the  old  Circuit  Court  and  the  old  District  Court,  which 
were  kept  separate. 

183.  Liens  of  Decedent's  Debts. 

By  act  of  1901  (June  14,  1901,  P.  L.  562)  all  debts  of  a  dece- 
dent are  a  lien  on  all  real  estate  of  which  he  died  seised  for  two 
years  after  his  death,  regardless  of  whether  these  debts  had  been 
reduced  to  judgments  in  decedent's  lifetime  or  not.  After  two 
years  from  date  of  decedent's  death  the  liens  of  debts  other  than 
judgments  expire  unless  preserved  by  suit  being  commenced  and 
indexed  (Act  of  May  3,  1909,  Sec.  1,  P.  L.  386)  in  the  judgment 
index  of  the  prothonotary.  If  suit  commenced  at  any  time  be- 
fore the  expiration  of  the  two  years  is  indexed  as  above  stated 


212  Conveyancing  in   Pennsylvania. 

and  duly  prosecuted  to  a  judgment,  its  lien  is  preserved.  Should 
the  debt  not  be  payable  within  the  two  years  as  (e.  g.,  a  three- 
year  note  dated  just  before  decedent's  death),  so  that  suit  cannot 
be  commenced,  the  lien  may  be  preserved  by  filing  a  copy  of  the 
instrument  or  evidence  of  indebtedness  with  the  prothonotary, 
who  will  index  it  in  the  judgment  index.  Search,  therefore, 
within  two  years  of  a  decedent's  death  will  avail  nothing.  After 
two  years,  search  in  the  judgment  index  will  disclose  any  liens 
still  existing.  Where  a  decedent's  land  is  sold  by  orphans'  court 
sale  for  payment  of  debts  the  liens  of  all  debts  are  immediately 
discharged  and  thrown  against  the  fund. 

184.  Other  Liens.     Mechanics'  and  Municipal  Liens. 

The  judgment  index  at  the  prothonotary's  office  will  disclose 
and  should  be  searched  for  municipal  improvements,  such  as 
grading  of  streets,  paving,  etc.,  which  are  liens  from  the  time 
of  their  completion,  if  filed  within  six  months  from  that  time. 
Mechanics'  liens  by  act  of  1901  (Mechanic's  Lien  Act  of  June 
4,  1901,  P.  L.  431)  may  also  become  liens  against  property  from 
the  time  of  the  commencement  of  the  work,  if  filed  within  six 
months  from  its  completion  for  new  work  (Act  of  June  4,  1901, 
Sec.  13),  and  within  three  months  for  repairs  exceeding  $100.00. 
Mechanics'  liens  when  filed  are  also  indexed  in  the  judgment 
index  of  the  prothonotary's  office.  If  the  right  to  file  a  lien  be 
waived  before  the  beginning  of  the  work  by  writing  duly  exe- 
cuted in  accordance  with  the  law  (Mechanic's  Lien  Act  of  June 
4,  1901,  Sec.  15,  P.  L.  431),  no  mechanic's  lien  can  be  filed  either 
by  the  contractor,  subcontractor  or  material  man,  and  if  filed 
will  be  stricken  off. 

185.  Locality  Index  in  Philadelphia. 

In  Philadelphia,  under  a  special  act  (Act  of  March  21,  1864, 
P.  L.  171),  there  is  kept  by  the  prothonotary  of  the  common 
pleas  courts  a  locality  index.  All  municipal  claims  and  me- 
chanics' liens,  in  addition  to  being  indexed  in  the  name  of  the 
owner,  are  also  indexed  under  the  location  or  description  of  the 
property.  Searching  this  index  not  only  verifies  the  judgment 
index  but  turns  up  liens  against  property  where  the  name  of  the 
owner  was  either  unknown  or  erroneously  given.  In  many 
counties  where  the  tax  collector  is  unable  to  ascertain  the  name 
of  the  owner,  tax  liens  are  indexed  under  the  name  "unknown." 


SEARCHES.  213 

This  is  unnecessary  wherever  the  counties  have  either  a  registry 
bureau  or  locality  index. 

186.  Taxes  and  Unfiled  Liens  Etc. 

Since  1901  by  statute  (Act  of  June  4,  1901,  P.  L.  364)  all 
taxes  are  a  first  lien  on  property  even  if  unfiled  for  two  years 
from  the  date  they  accrue.  The  law  provides  that  upon  the  ju- 
dicial sale  of  any  property  the  taxes  must  be  paid  out  before  any 
other  lien  or  encumbrance  or  anything  else  except  the  court  costs 
and  costs  of  sale.  In  order  for  the  liens  of  taxes  to  be  preserved 
after  two  years  they  must  be  filed  as  a  municipal  claim  before  the 
expiration  of  two  years  and  revived  every  five  years  thereafter. 
When  so  filed  they  will  appear  on  the  judgment  index  of  the 
prothonotary's  office.  Water  rates,  lighting  and  sewer  rates  must 
also  be  filed  in  the  prothonotary's  office  within  two  years  after 
they  are  payable  or  else  they  will  not  be  a  lien.  As  stated  in 
Paragraph  184,  unless  the  right  be  waived  there  may  be  a  right  to 
file  a  mechanic's  lien  against  a  property  just  completed  or  re- 
paired, which,  by  filing  within  six  months,  would  ripen  into  a 
lien.  When  taking  title  to  a  property  therefor  demand  the 
owners'  affidavit  that  it  has  been  completed  longer  than  six 
months  or  that  no  repairs  have  been  made  within  the  past  three 
months,  or  require  a  release  of  liens.  Municipal  claims  also,  such 
as  street  improvements  and  paving,  are  a  lien  from  the  time  of  the 
completion  of  the  work  until  six  months  thereafter  without  being 
filed. 

To  guard  against  the  possibility  of  these  unfiled  liens,  see  that 
all  taxes  and  water  rent  receipts  are  produced  for  two  years  or  a 
certificate  of  their  payment  obtained  from  the  Receiver  of  Taxes. 
Require  an  affidavit  also  that  no  street  improvements  were  made 
or  other  possible  municipal  claims  have  accrued  within  six  months 
or  that  payment  thereof  has  been  made. 

187.  Assignment  of  Mortgage  Searches. 

When  searching  title  in  order  to  see  whether  a  first  mortgage 
about  to  be  assigned  is  good,  search  first  against  the  title  of  the 
mortgagor,  as  if  for  a  conveyance  (Par.  174).  Then  for  mort- 
gages, to  see  whether  the  one  to  be  assigned  is  a  first  lien  as  rep- 
resented. Then  search  for  possible  prior  assignments  thereof. 
Assignments  of  mortgages  are  indexed  in  a  separate  index,  as 
well  as  noted  on  the  margin  of  the  mortgage  book.     All  assign- 


214  Conveyancing   in   Pennsylvania. 

ments  of  mortgage  must  have  two  witnesses.  Search  should  then 
be  made  for  possible  releases  to  see  whether  the  mortgage  still 
covers  all  the  land  described  by  it.  In  Philadelphia,  releases 
of  mortgages  are  also  indexed  in  a  separate  index  since  1880. 
Having  completed  the  search,  demand  as  a  final  precaution  a 
declaration  of  no  set-off  from  the  owner  and  ascertain  if  there 
are  any  outstanding  unpaid  municipal  claims  or  taxes  (See  Par. 
186). 

188.  Examination  of  Property. 

After  all  searching  is  completed  personally  view  the  property 
about  to  be  conveyed.  This  will  afford  an  opportunity  of  discov- 
ering any  existing  easement  not  disclosed  in  the  chain  of  title. 
In  Pennsylvania  a  person  takes  subject  to  any  visible  and  notori- 
ous easement  without  express  mention  in  the  deed,  the  rule  being, 
"Where  an  owner  of  land  subjects  part  of  it  to  an  open,  visible, 
permanent  and  continuous  servitude  or  easement  in  favor  of 
another  part,  and  then  aliens  it  the  purchaser  takes  subject  to 
the  burden  or  benefit  as  the  case  may  be  ( Liquid  Carbanic  Co.  v. 
Wallace,  219  Pa.  457).  Ascertain  also,  if  the  owner  is  not  in 
possession,  whether  the  occupant  is  a  tenant  or  claims  to  hold 
adversely  to  the  owner.  "It  evinces  as  much  carelessness  to 
purchase  property  without  having  viewed  the  premises  as  to 
purchase  without  having  searched  the  register"  (Woods  v. 
Farmee,  7  Watts  382).  "Nor  does  knowledge  of  the  existence  of 
a  lease  relieve  one  dealing  with  the  lessor  from  the  duty  of  in- 
quiring from  one  in  possession  whether  he  claims  otherwise  than 
under  the  lease"  (Anderson  v.  Brinser,  129  Pa.  376). 

189.  Synopsis  of  How  to  Search. 

Searches  Against  a  Prospective  Grantor  or  Mortgagor. 

I.  ( 1 )  Make  a  conveyance  search  by  searching  at  the  recorder 
of  deeds'  office  as  indicated  in  Paragraphs  172-174  for  flaws  in 
the  title. 

(2)  Verify  your  search  at  the  registry  bureau  as  indicated 
in  Par.  175. 

II.  Now  make  your  encumbrance  search. 

(1)  For  mortgages  in  the  mortgage  index  at  the  recorder  of 
deeds'  office  as  outlined  in  Par.  176. 


Searches.  215 

(2)  Search  for  judgments  at  the  office  of  the  prothonotary  of 
the  Supreme  Court  (Par.  179). 

(3)  Search  for  judgments  at  the  office  of  the  clerk  of  quarter 
sessions  (Par.  181). 

(4)  Search  for  judgments  at  the  office  of  the  clerk  of  United 
States  courts  (but  only  in  such  counties  where  the  court  sits,  e.  g., 
Philadelphia,  Allegheny,  etc.,  Par.  182).  While  at  this  office, 
make  search  for  possible  marshal's  sales  to  complete  your  convey- 
ance search  (Par.  174). 

(5)  Search  at  the  office  of  the  prothonotary  of  the  common 
pleas  courts. 

a.  Judgment  index  for  judgments  (Par.  180). 

b.  Judgment  index   for  lien  of  decedent's  debts,  if  any 
(Par.  183). 

c.  Judgment   index    for   municipal   and   mechanic's   liens 
(Par.  184). 

d.  Locality  index  (in  Philadelphia)  (Par.  185). 

e.  Search  here  also  for  sheriff's  sales  to  complete  convey- 
ance search  (Par.  174). 

III.  Personally  examine  property. 

(1)  For  easements  not  noted  in  chain  of  Title  (Par.  188). 

(2)  As  to  occupation  (Par.  188). 

Note  protection  against  unfiled  liens  and  taxes  (Par.  186). 

Searches  for  Ground  Rent. 

Titles  to  ground  rents  should  be  searched  for  the  same  as 
above. 

Searches  Where  an  Assignment  oe  Mortgage  is  to  be  Made. 

I.  Search  against  the  original  mortgagor  as  fully  as  though  he 
were  a  prospective  mortgagor,  or  grantor,  so  as  to  establish  the 
validity  and  nature  of  the  lien  about  to  be  assigned  (Par.  187). 

II.  a.  Search  against  the  original  mortgagor  and  all  subse- 
quent assignees  of  the  mortgage  during  the  time  they  respectively 
held  title,  so  as  to  turn  up  any  adverse  assignments  (Par.  187). 

b.  See  that  assignments  are  in  proper  form  with  two  witnesses. 

III.  Search  against  all  holders  of  mortgage  for  possible  re- 
leases (Par.  187). 


216  Conveyancing  in   Pennsylvania. 

IV.  Demand  declaration  of  no  set-off  (Par.  187). 

190.     Brief  or  Abstract  of  Title.     Form. 

The  result  of  the  searches  is  arranged  to  show  the  chain  of 
title  in  what  is  called  an  abstract  or  brief  of  title. 

The  following  Abstract  of  Title  is  set  forth  "in  extenso"  as  an 
admirable  example  of  the  old  time  conveyancer's  art.  It  is  a 
splendid  guide  covering  as  it  does  six  separate  chains  of  title 
for  over  a  hundred  years,  to  a  half  a  block  of  houses,  uniting  them 
finally  in  the  ownership  of  one  man.  The  careful  study  of  this 
abstract  of  title  is  recommended  to  all  those  who  wish  to  learn 
title  searching,  for  in  it  they  will  find  recited  practically  every 
mode  of  acquiring  title  as  e.  g.  by  adverse  possession,  by  deed, 
by  will,  by  descent,  extinguishment  of  ground  rents,  mortgage 
foreclosure  proceedings,  sheriff  sale,  proceedings  in  Orphans' 
Court,  &c. 

Brief  or  Abstract  of  Title. 

To  all  that  certain  lot  or  piece  of  ground  with  the  mes- 
suages or  tenements  and  other  buildings  and  improvements  there- 
on erected  situate  in  the  Twelfth  Ward  of  the  City  of  Phila- 
delphia and  described  according  to  a  recent  survey  thereof,  as 
follows,  viz:  Beginning  at  a  point  on  the  south  side  of  Fair- 
mount  Avenue  at  the  distance  of  fifty-seven  feet,  seven  inches 
westwardly  from  the  westwardly  side  of  Hermitage  Street  (form- 
erly Smith's  Alley),  thence  extending  southwardly  through  the 
middle  of  a  wall  eighteen  feet  to  a  point,  thence  still  south- 
ward on  a  line  parallel  with  Fourth  Street  fifty-five  feet,  ten 
inches  to  a  point,  thence  eastwardly  on  a  line  parallel  with  said 
Fairmount  Avenue  fifty-four  feet  to  the  westwardly  side  of  the 
said  Hermitage  Street,  hence  along  the  same  southwardly  sev- 
enty-six feet,  four  and  one  half  inches  to  a  point,  thence  west- 
wardly on  a  line  parallel  with  said  Fairmount  Avenue  one  hun- 
dred and  twenty  feet,  one  inch  to  a  point,  thence  northwardly  on 
a  line  parallel  with  the  said  Fourth  Street  seventy-five  feet 
eleven  and  three  quarter  inches  to  a  point,  thence  eastwardly  on 
a  line  parallel  with  Fairmount  Avenue  four  feet  to  a  point, 
thence  northwardly  on  a  line  parallel  with  said  Fourth  Street 
twenty-four  feet,  nine  inches  to  a  point,  thence  westwardly  on 
a  line  parallel  with  said  Fairmount  Avenue  one  foot  to  a  point, 
thence  northwardly  on  a  line  parallel  with  said  Fourth  Street 
forty-nine  feet,  seven  and  three  quarters  inches  to  the  south  side 


Searches. 


217 


of  said  Fai 

sixty-four 

1784 

Dec.  6. 
Produced  and 
examined. 


Nov.    12th. 
Produced  and 
examined. 


Recited    in 
Deed — Robert 
Ralston   et   al 
to   Jacob 

Stearley. 

J79S 

January  1st. 
Produced  and 
examined. 


rmount  Avenue  and  thence  eastwardly  along  the  same 
feet,  six  inches  to  the  place  of  beginning. 

Deed  Poll. — Thomas  Proctor,  Esq.,  high  sheriff 
to  Francis  Proctor,  Sr.,  in  fee  for  a  certain  lot  of 
ground  situate  on  the  west  side  of  Third  Street  in 
the  Northern  Liberties  of  the  County  of  Philadel- 
phia, containing  in  breadth  on  said  Third  Street 
and  on  the  west  end  seventy-four  feet  or  there- 
abouts and  in  length  or  depth  250  feet,  bounded 
eastward  by  said  Third  Street,  southward  partly  by 
land  of  William  Allen  and  partly  by  David  Bene- 
zet's  ground,  westerly  by  other  ground  of  Thomas 
Budd  and  northward  by  ground  of  Levi  Budd. 

Sold  as  the  property  of  Benjamin  Flowers. 
Consideration,  forty  pounds;  subject  to  ground  rent 
of  seventeen  pounds,  eleven  shillings  and  six  pence 
per  annum. 

Acknowledged  in  open  court  of  common  pleas 
on  December  20th,  1784.     B  3,  449. 

Deed. — Francis  Proctor  and  Ann,  his  wife,  to 
Jonathan  Bayard  Smith  in  fee  for  the  same  prem- 
ises. Subject  to  the  said  ground  rent  of  seventeen 
pounds,  eleven  shillings  and  six  pence  per  annum. 

Duly  acknowledged  June  10th,  1786. 

The  said  yearly  ground  rent  of  seventeen  pounds, 
eleven  shillings  and  six  pence  has  been  duly  re- 
leased and  extinguished. 

Deed. — Jonathan  Bayard  Smith  and  Hannah,  his 
wife,  to  Richard  Limehouse  in  fee  for  a  certain  lot 
of  ground  situate  on  the  westerly  side  of  a  certain 
twenty  feet  wide  alley  (now  Hermitage  Street), 
being  twenty  feet  wide  through  J.  B.  Smith's  lot, 
of  which  this  was  part),  containing  in  front  on 
said  alley  twenty  feet  and  extending  in  depth  120 
feet  Bounded  southward  by  ground  of  Daniel 
Benezet  and  partly  by  ground  of  Jacob  Steinmetz 
(being  part  of  the  premises  last  described).  Re- 
serving thereout  a  certain  yearly  ground  rent  or 
sum  of  twenty  Spanish  milled  silver  dollars. 

Acknowledged  July   17th,   1795,  ar»d  April  24th, 


2l8 


Conveyancing  in   Pennsylvania. 


January    6th, 
1806. 

Produced   and 
examined. 


1826 

Mar.  28th. 
Produced  and 
examined. 


Recited    in 
the  next  deed. 


1795,  and  recorded  July  24th,  1804,  in  Deed  Book 
E.  F.,  No.  16,  page  368,  &c. 

Deed  Poll. — Richard  Limehouse  and  Elizabeth 
his  wife  to  John  Harrison,  in  fee  for  the  same 
premises.  Subject  to  said  ground  rent  of  twenty 
($20.00)  dollars. 

Duly  acknowledged  same  day  and  recorded  May 
18th,  1826,  in  Deed  Book  G.  W.  R.,  No.  9,  page 

355,  &c 

Deed  Poll. — John  Harrison  to  Jacob  Steady  in 
fee  for  the  same  premises.  Subject  to  said  ground 
rent  or  sum  of  $20.00. 

Duly  acknowledged  April  4th,  1826,  and  record- 
ed May  18th,  1826,  in  Deed  Book  G.  W.  R.,  No.  9, 
page  356,  &c.  The  said  Jonathan  Bayard  Smith 
being  seised  in  fee  of  and  in  inter  alia  the  premises 
in  question  (being  the  premises  conveyed  by  the 
next  deed)  died  having  first  made  and  published  his 
last  will  and  testament  in  writing  bearing  date  the 
first  day  of  June,  181 2,  duly  proven  and  registered 
at  Philadelphia,  wherein  and  whereby  he  did  give 
and  devise  unto  Robert  Ralston,  William  Rush 
and  Abraham  Kintzing,  and  the  survivors  and  sur- 
vivor of  them  and  the  heirs,  executors  and  admin- 
istrators of  such  survivor,  all  his  real  estate  in 
trust  for  the  uses  and  purposes  therein  set  forth 
the  rents  and  profits  to  be  paid  to  his  five  children 
therein  named  for  and  during  the  space  of  five 
years  after  his  decease  and  he  did  thereby  further 
will  as  follows:  "If  the  said  trustees  shall  neither 
divide  nor  sell  the  same  within  five  years  after  my 
decease  then  from  and  after  the  expiration  of  the 
said  term  of  five  years  the  said  trustees  shall  sell 
or  divide  the  same  on  the  application  and  request 
of  the  major  part  of  my  children  then  living  and 
if  any  child  be  dead  his  legal  representatives  to 
have  a  voice  as  he  or  they  would  have  had  if  living," 
and  of  his  said  will  he  did  nominate  and  appoint 
his  sons  John  R.  Smith,  Samuel  H.  Smith  and 
Jonathan  Smith  to  be  executors.  And  whereas  the 
said  Jonathan  Smith  is  absent  and  the  said  Samuel 


Searches.  219 

H.  Smith  and  Margaret,  his  wife,  Susan  B.  Smith, 
and  Ann  Caroline  Smith,  by  letter  of  attorney  dated 
October  20th,  last  past  (1825),  intended  to  be  re- 
corded, did  nominate  and  appoint  the  said  John  M. 
Read  to  be  their  true  and  lawful  attorney  to  grant, 
bargain  and  sell  all  or  any  of  the  lands  and  tene- 
ments belonging  to  the  estate  of  their  said  father, 
to  which  they  were  entitled  and  to  execute  such 
deeds  and  conveyances  as  should  be  necessary 
therefor  and  also  for  them  and  in  their  names  to 
apply  to  and  require  the  said  trustees  to  sell  said 
real  estate  according  to  the  directions  of  said  testa- 
tor and  generally  to  do  all  such  other  acts,  matters 
and  things  as  should  be  necessary  to  effect  the 
purposes  of  said  testator. 

Deed — Between  Robert  Ralston,  William  Rush 
1826  and  Abraham  Kintzing,  trustees  of  the  last  will  and 

Produced  and  testament  of  Jonathan  Bayard  Smith,  deceased,  of 
the  first  part.  John  R.  Smith,  one  of  the  devisees 
in  said  will  named,  Samuel  H.  Smith  and  Mar- 
garet, his  wife,  Susan  B.  Smith  and  Ann  Caroline 
Smith  (the  said  Samuel,  Susan  B.,  and  Ann  Caro- 
line, being  three  other  of  the  devisees  in  said  will 
named),  (the  four  last-named  acting  by  their  at- 
torney John  M.  Read,  duly  constituted),  of  the 
second  part  and  Jacob  Steady,  of  the  third  part. 

Whereby,  The  said  Robert  Ralston,  William 
Rush  and  Abraham  Kintzing,  trustees  as  aforesaid 
(upon  the  request  of  said  parties  of  the  second 
part),  in  consideration  of  the  sum  of  $1,000.00  and 
in  pursuance  and  execution  of  the  power  and  au- 
thority contained  in  said  last  will  and  testament, 
and  of  the  trusts  in  them  reposed  and  vested  and 
by  force  and  virtue  thereof,  granted  and  conveyed 
unto  the  said  Jacob  Steady,  his  Heirs  and  Assigns 
A  Certain  lot  or  piece  of  Ground,  situate  on  the 
West  side  of  Smith's  Alley  (laid  out  from  Green 
Street  to  Coats  Street)  in  the  Nothern  Liberties 
of  the  County  of  Philadelphia,  between  Third  and 
Fourth  Streets  containing  in  front  or  breadth 
on    said    Smith's    Alley    55    feet    six    inches    and 


220 


Conveyancing   in   Pennsylvania. 


J79S 
June 
R 


ecited. 


1B05 
Tune   8. 
Exd.    Record. 


in  length  or  depth  Westward  120  feet,  bounded 
Southward  by  Ground  formerly  of  Daniel  Bene- 
zet  and  Jacob  Steinmetz,  Northward  by  a  lot  of 
ground  granted  to  John  Redman  on  Ground  Rent, 
Westward  by  ground  formerly  of  Thomas  Budd, 
and  Eastward  by  Smith's  Alley  aforesaid  (includ- 
ing therein  the  lot  of  Ground  conveyed  by  the  last 
recited  Deed).  Together  with  all  and  singular 
the  buildings,  improvements,  ways,  alleys,  passages, 
waters,  &c,  Hereditaments  and  appurtenances 
whatsoever  thereunto  belonging,  &c.  And  the  re- 
versions, remainders  rents,  issues,  and  profits 
thereof,  and  also  all  the  estate,  right,  title,  inter- 
est, property,  claim  and  demand  whatsoever  of 
them  the  said  Trustees  and  of  the  said  Jonathan 
Bayard  Smith  at  and  immediately  before  the  time 
of  his  decease  as  well  at  law  as  in  equity  of,  in,  to 
and  out  of  the  same. 

Duly  proven  May  16th,  1826,  and  recorded  May 
1 8th,  1826,  in  Deed  Book  G.  W.  R.  No.  9,  page 
356,  &c. 

Note. — The  hereinafter  recited  Deed  from 
Luther  G.  Smith  et  al.  to  Peter  S.  Dildine  recites 
that  the  above  mentioned  yearly  Ground  rent  or 
sum  of  $20.00  merged  and  became  extinguished 
by  virtue  of  the  foregoing  Deed. 

Deed. — Jonathan  Bayard  Smith  and  wife  to 
Duncan,  in  fee  for  a  Lot  of  Ground  situate  on 
the  West  side  of  Smith's  Alley  aforesaid — con- 
taining in  breadth  North  and  South  18  feet,  and 
extending  in  length  or  depth  120  feet.  Reserving 
thereout  a  certain  yearly  ground  rent  of  18  Span- 
ish milled  silver  dollars  payable  half  yearly  on  the 
first  day  of  January  and  July. 

Deed  Poll. — John  Barker  high  sheriff,  &c,  to 
John  Redman,  in  fee  for  the  same  premises  sub- 
ject to  the  said  ground  rent  of  $18.00. 

Acknowledged  in  open  Court  of  Common  Pleas 
and  entered  among  the  records  thereof  in  Book 
E,  page  97,  &c. 


iSo7 
Nov.   9th. 


1826 

Nov.    10th. 
Exd.    Record. 


1827 

January  20th. 
Produced  and 
examined. 


Searches.  22i 

Will  of  John  Redman  wherein  and  whereby  after 
sundry  devises  and  bequests,  he  did  give,  devise 
and  bequeath  all  the  rest,  residue  and  remainder  of 
his  estate  in  Pennsylvania,  and  all  and  every  his 
personal  property  of  every  description  whatsoever, 
unto  Phinehas  Bond,  William  Rawle  and  Samuel 
Coates  their  heirs  and  assigns  forever  and  to  the 
survivor  of  them  his  heirs  and  assigns  forever 
upon  the  special  trust  and  confidence,  &c,  to  and 
for  the  absolute  use  and  behoof  of  his  beloved 
daughter  Sarah  Coxe—  to  be  subject  to  her  un- 
qualified control  and  disposal  to  be  sold,  &c,  as 
she  might  order  and  direct  and  upon  the  further 
trust  that  they  shall  and  do  well  and  truly  dispose 
of  his  real  estate  in  Pennsylvania,  &c,  in  such  man- 
ner and  for  such  uses,  &c,  as  his  said  daughter  by 
writing  under  her  hand  and  seal  or  by  her  last 
will  and  testament  shall  ordain,  appoint,  limit,  and 
direct. 

Duly  proven  and  registered  at  Philadelphia  in 
Will  Book  No.  2,  page  278,  &c. 

Letter  of  Attorney.— Sarah  Coxe,  widow, 
whereby  she  did  ordain  and  appoint  and  limit 
the  use  of  the  said  real  estate  and  direct  the  said 
Wiliam  Rawle  and  Samuel  Coates  (who  survived 
the  said  Phinehas  Bond)  and  the  survivor  of 
them  and  the  heirs  and  assigns  of  the  survivor  of 
them  to  grant,  bargain,  sell  and  convey,  release  and 
confirm  the  same  with  the  appurtenances  unto  and 
to  the  use  of  her  son  John  Redman  Coxe  his  heirs 
and  assigns  forever. 

Duly  acknowledged  and  recorded  in  Letter  of 
Attorney  Book  G.  W.  R.  No.  1,  page  180,  &c. 

Deed.— William  Rawle  and  Samuel  Coates,  sur- 
viving devisees  in  trust,  &c,  to  John  Redman  Coxe 
in  fee  for  (inter  alia)  the  same  premises.  Sub- 
ject to  said  gronud  rent  of  $18.00. 

Acknowledged  same  day  and  recorded  February 
2 1st,  1827,  in  Deed  Book  G.  W.  R.  No.  14,  page 
469,  &c, 


222 


Conveyancing   in   Pennsylvania. 


1827 

January    31. 
Produced  and 
examined. 


1836 
Sept.    9. 
Exd.    Record. 


1831 

April    8. 
Exd.  Record. 


1831 

April    8. 
Produced  and 
examined. 


i8t3 
Feb.    ij. 

Exd.    Record. 


Deed. — John  Redman  Coxe  and  Sarah  his  wife 
to  Jonathan  Collom,  in  fee  for  the  same  premises 
subject  to  said  ground  rent  of  $18.00. 

Acknowledged  February  19th,  1827,  and  re- 
corded February  22,  1827,  in  Deed  Book  G.  W.  R. 
No.  14,  page  477,  &c. 

(Title  to  said  ground  rent  of  $18.00.) 

Deed. — Robert  Ralston,  Abraham  Kintzing  and 
William  Rush,  trustees  as  aforesaid,  to  Jacob 
Griffith,  his  heirs  and  assigns,  for  said  ground  rent 
of  $18.00. 

Duly  proved  same  day  and  recorded  September 
18,  1826,  in  Deed  Book  G.  W.  R.  No.  13,  page 
271,  &c. 

Deed  Poll. — Isaac  Griffith  and  Rachel,  his  wife, 
to  Jonathan  Collom,  his  heirs  and  assigns,  extin- 
guishing said  ground  rent  of  $18.00. 

Duly  acknowledged  same  day  and  recorded  April 
9th,  1 83 1,  in  Deed  Book  A.  M.,  No.  10,  page  290, 
&c. 

Deed. — Jonathan  Collom  and  Mary,  his  wife, 
to  Jacob  Stearly,  in  fee  for  part  of  the  same  prem- 
ises (i8x  54). 

Duly  acknowledged  same  day  and  recorded  April 
9th,  1 83 1,  in  Deed  Book  A.  M.,  No.  10,  page  291, 
&c. 

Deed. — Jonathan  Collom  and  Mary,  his  wife, 
to  David  W.  Collom,  his  heirs  and  assigns,  for  all 
and  singular  the  messuages,  lands,  tenements,  here- 
ditaments and  real  estate  whatever  and  whereso- 
ever of  him  the  said  the  Jonathan  Collom.  In 
trust  as  therein  mentioned — during  the  life  of  said 
Mary  and  during  the  life  of  said  Jonathan  in  case 
he  should  survive  her  and  after  their  decease,  in 
trust  to  grant  and  convey  the  same  to  such  person 
or  persons  an  should  be  entitled  to  same  if  said 
Mary  had  survived  her  husband  and  died  intestate 
seised  of  said  premises. 


Recited. 


1850 

Auk.    26. 
Exd.    Record. 


1859 

Aug.    27. 
Exd.    Record. 


18S9 

Aug.    30. 
Exd.    Record. 


Search  es.  22^ 

Acknowledged  February  15th,  1843,  and  re- 
corded July  30,  1845,  in  Deed  Book  R.  L.  L.,  No 
44.  page  354,  &c. 

The  said  Mary  Collom  survived  her  husband, 
died  intestate,  leaving  two  children,  viz:  David 
Collom  and  Jonathan  G.  Collom  and  no  issue  of  a 
deceased  child. 

Deed.— David  W.  Collom  to  Lewis  S.  Pontzler, 
in  fee  for  inter  alia,  a  lot  of  ground  situate  on 
the  west  side  of  Hermitage  street  (formerly  Smith's 
alley)  containing  in  breadth  north  and  south  18 
feet  and  extending  in  length  or  depth  about  66 
feet,  (being  part  of  the  premises  last  above  de- 
scribed) in  trust  to  convey  the  same  to  David  W. 
and  Jonathan  G.  Collom  in  fee,  discharged  of  all 
trusts. 

Acknowledged  August  30th,  1859,  and  recorded 
September  1,  1859,  in  Deed  Book  A.  D.  B,  No. 
78,  page  413,  &c. 

Deed.— Lewis  S.  Pontzler  to  David  W.  Collom 
and  Jonathan  G.  Collom,  in  fee  for  inter  alia,  the 
same  premises. 

Acknowledged  August  30th,  1859,  and  recorded 
September  1,  1859,  in  Deed  Book  A.  D.  B.,  No. 
78,  page  417,  &c. 

Indenture  of  Mortgage.— David  W.  Collom  and 
and  Jonathan  G.  Collom  to  the  Philadelphia  Sav- 
ing Fund  Society  for  $2000.00,  in  one  year,  with  in- 
terest, inter  alia  premises  last  described. 

Acknowledged  same  day  and  recorded  same  day 
in  Mortgage  Book  A.  D.  B.,  No.  39,  page  193,  &c. 

The  following  proceedings  were  afterward  had 
upon  said  mortgage,  in  the  district  court  for  the 
county  of  Philadelphia. 


224 


Conveyancing  in   Pennsylvania. 
Appearance    Docket. 

September  Term,  i860. 


H.    Wharton 
Exd.    Record. 


H.    Wharton 
966. 


i860 

Nov.    17th. 
Exd.    Record. 


The   Philadelphia    Sav- 
ing Fund  Society, 
vs. 
David   W.    Collom   and 
Jonathan    G.    Collom. 


r  Sci.  fa.  sur  mortgage  re- 
corded in  M.  B.  A.  D. 
B.,  No.  39,  page  193. 

Exit  Sept.  7,  i860. 

Retble.  1st  Mon.  Octo- 
ber, i860. 

"Made  Known." 


October  8,  i860.     By  order  of  Plffs.  Atty.  filed 
judgment  for  want  of  an  appearance. 

Eo   die   damages   ass'd,   $2132.67 — Lev.    fa.    S. 
60,966. 

Execution  Docket. 
September  Term,  i860. 


The    Philadelphia    Sav 
ing  Fund  Society, 
vs. 
David   W.    Collom   and*1 

Jonathan  G.  Collom. 
October  25th. 


Lev.  fa.  (S.  60,552.) 
R.  D.  $2000.00 

Int  for  Aug.  30,  '59. 
Atty  and  writ  4.50 

Serv.  2.50 

Cr.  .12 

Prothy.  4.75 

Sat.  .12 

Lev.  fa.  .75 


Sold  premises  1st  described  to  F.  Ladner  for 
$1,425. 

Sold  premises  2nd  described  to  F.  Ladner  for 
$1,200. 

Sold  premises  last  described  to  A.  M.  Grauel  for 

$750. 

Deed  Poll.— William  H.  Kern,  high  sheriff,  to 
Andrew  M.  Granel,  in  fee — consideration  $750,  for 
premises  last  above  described. 

Sold  as  the  property  of  David  W.  Collom  and 
Jonathan  G.  Collom. 


Searches.  225 

Acknowledged  in  open  district  court  and  entered 
among  the  records   thereof   in   Book   W.   2,   page 

578,  &c. 
Recited.  Andrew    M.    Grauel   being   seised   of   inter   alia 

said  premises  died  intestate  leaving  no  widow,  but 
issue  six  children,  viz:  Andrew  J.  Grauel,  Lafay- 
ette Grauel,  John  Grauel,  Eliza  Wells,  Christiana 
De  Feglie,  and  William  Grauel  to  whom  the  same 
descended  according  to  law. 

The  said  William  Grauel  being  seized  of  one  full 
equal  undivided  sixth  part  of  and  in  the  said  prem- 
ises  died   leaving   a   widow — Rachel   Grauel — him 
surviving  and  having  first  made  a  will. 
j^JJj  12th  Will  of  William  Grauel  wherein  and  whereby 

he  did  nominate  and  appoint  (the  said)  John  Lov- 
att,  sole  executor,  and  did  authorize,  direct  and  em- 
power him  to  sell  and  dispose  of  all  his  real  estate 
at  either  public  or  private  sale  for  the  best  price 
that  one  can  reasonably  be  gotten  for  the  same 
and  to  grant  and  convey  the  same  to  the  purchaser 
or  purchasers  thereof  without  any  liability  on  the 
part  of  the  purchaser  or  purchasers  thereof  to  see 
to  the  application  of  the  purchase  money. 

Duly  proved  October  2,  1866,  and  registered  in 
Will  Book  No.  58,  page  339,  &c. 
m^  26th.  Deed. — Andrew  J.  Grauel  and  Amanda,  his  wife, 

Exi  Record.  Lafayette  Grauel  and  Phebe,  his  wife,  John  Grauel 
Franklin  S.  Wells  and  Eliza,  his  wife  (late  Eliza 
Grauel)  and  Jean  De  Feglie  and  Christiana,  his 
wife,  (late  Christiana  Grauel)  of  the  first  part; 
John  Lovatt,  sole  executor  of  William  Grauel,  de- 
ceased, of  the  second  part;  Rachel  Grauel,  widow 
of  William  Grauel,  deceased,  of  the  third  part,  to 
William  Frederick  Snyder,  in  fee  for  premises 
last  above  described. 

(Recites  a  public  sale  by  the  parties  of  the  first, 
second  and  third  parts.) 

Consideration,  $2,850.     Stamp,  $3.00. 

Acknowledged  same  day  and  recorded  August 
28th,  1868,  in  Deed  Book  J.  T.  O.,  No.  171,  page 
260,  &c. 


226 


Conveyancing  in   Pennsylvania. 


1868 

May    26th. 
Produced   and 
examined. 


1870 

Apr.     19. 
Produced   and 
Exd. 


1782 

Mar.     1 8. 
Exd.    Record. 


1783 

Sept.     15. 
Produced   and 
Exd.       Recited. 


1787 

Aug.    24. 
Produced   and 
Exd. 


>796 

Tune    30. 
Produced   and 
Exd. 


1790 

Sept.    2t. 
Produced   and 
Exd. 


Deed. — William  Frederick  Snyder  to  Andre  v 
J.  Grauel  and  Lafayette  Grauel,  in  fee  for  iUer 
alia  the  same  premises.  Consideration,  $2,650. 
Stamp,  $3.00. 

Duly  acknowledged  June  2,  1868,  and  recorded 
August  26,  1868,  in  Deed  Book  J.  T.  O.,  No.  171, 
page  336,  &c. 

Deed. — Andrew  J.  Grauel  and  Amanda  M.,  his 
wife,  and  Lafayette  Grauel  and  Phebe,  his  wife 
to  Jacob  Stearly,  in  fee  for  the  same  premises. 
Consideration,  $1,000.     Stamp,  $1.00. 

Acknowledged  same  day  and  recorded  May  2nd. 
1870,  in  Deed  Book  J.  A.  H.,  No.  25,  page  543,  &c. 

Deed. — John  Dickinson  and  Mary,  his  wife,  to 
Amos  Harmer,  in  fee  for  a  lot  of  ground  situate 
on  the  west  side  of  Delaware  Third  street  in  the 
Northern  Liberties  aforesaid.  Containing  in 
breadth  on  said  Third  street  thirty-eight  feet  and 
extending  in  length  or  depth  250  feet,  reserving 
thereout  a  certain  rent  charge  of  forty  Spanish 
milled  dollars. 

Acknowledged  same  day,  recorded  October 
12th,  1782,  in  Deed  Book  No.  5,  page  161,  &c. 

Deed. — Amos  Harmer  to  William  Side,  in  fee 
for  the  southernmost  moiety  of  the  last  described 
lot  of  ground. 

Subject  to  a  moiety  of  said  rent  charge  of  forty 
dollars. 

Acknowledged  Oct.  II,  1783,  not  recorded. 

Deed. — William  Side  and  Elizabeth,  his  wife, 
to  George  Savell,  in  fee  for  the  westernmost  moiety 
of  the  lot  of  ground  conveyed  by  the  last  deed  free 
clear  and  freely  and  clearly  acquitted,  exonerated 
and  forever  discharged  from  the  said  rent  charge 
of  40  dollars. 

Acknowledged  same  day,  not  recorded. 

Deed  Poll  Indorsed. — George  Savell  to  John 
Redman,  in  fee  for  the  same  premises. 

Duly  proven  May  30th,  1826.  but  not  recorded. 

Deed  Poll  Indorsed. — William  Side  to  John 
Redman,  in  fee  for  easternmost  moiety  of  the  lot 


Searches. 


227 


1785 

Sept.    20. 
Exd.    Record. 


1791 

Feby.    10. 
Exd.    Record- 


Recited    in 
next    deed. 


1797 

March    30. 
Produced   and 
Exd. 


conveyed  by  the  above  recitel  deed  from  Amos 
Harmer  to  William  Side. 

Acknowledged  Sept.  25th,  1790,  not  recorded. 

Deed. — Amos  Harmer  and  Mary,  his  wife,  to 
George  Savell,  in  fee  for  the  northernmost  moiety 
of  the  lot  conveyed  by  John  Dickinson  and  wife  to 
Amos  Harmer,  subject  to  a  moiety  of  said  rent 
charge  of  40  dollars. 

Duly  acknowledged  Sept.  22nd,  1785,  and  re- 
corded October  1st,  1786,  in  Deed  Book  No.  14, 
page  113,  &c. 

Deed  Poll. — James  Ash,  Esq.,  high  sheriff,  to 
John  Redman,  in  fee  for  a  lot  of  ground  situate 
on  the  west  side  of  Delaware  Third  street  in  the 
Northern  Liberties  aforesaid  containing  in 
breadth  on  said  Third  street  55  feet  and  extending 
in  depth  along  Coates  street  250  feet,  subject  to 
two  yearly  rent  charges  of  20  dollars  respectively 
and  also  subject  to  a  mortgage  debt  of  150  L. 

Taken  in  execution  and  sold  as  the  property  of 
George  Savell. 

Acknowledged  May  3,  1791,  and  recorded  in 
Sheriff's  Deed  Book  C,  No.  4,  page  215. 

The  ground  rents  above  recited  together  with 
said  mortgage  debt  have  been  purchased  off  by 
the  said  John  Redman  and  extinguished,  so  that 
the  premises  are  now  free  and  discharged  from  the 
same. 

Deed. — John  Redman  to  John  Young,  in  fee  for 
lot  of  ground  situate  on  the  south  side  of  Coates 
street  215  feet  westward  from  the  corner  of  said 
Coates  street  and  Delaware  Third  street  continued 
in  the  Northern  Liberties  aforesaid,  containing 
in  breadth  east  and  west  18  feet  and  length  north 
and  south  74  feet  more  or  less — the  east  and  west 
sides  running  parallel  with  said  Third  street  and 
also  a  certain  gore  adjoining  on  the  east. 

Reserving  thereout  a  certain  yearly  ground  rent 
or  sum  of  18  Spanish  milled  silver  dollars,  in  equal 
half  yearly  payments  on  the  first  day  of  the  months 
of  January  and  July  in  each  and  every  year  free 
of  taxes,  &c. 


228 


Conveyancing  in   Pennsylvania. 


1802 

Exd.    Record 


Recited. 


1827 

May    10. 
Exd.    Record. 


1807 
Nov.    9th. 


1826 

Nov.    10th. 
Exd.    Record. 


Acknowledged  June  5th,  1797,  by  John  Young 
and  May  24th,  1797,  by  John  Redman  and  record- 
ed August  3rd,  1802,  in  Deed  Book  E.  F.,  No.  9, 
page  450,  &c. 

Deed. — John  Young  and  Elizabeth,  his  wife,  to 
Robert  Andrews  and  Amelia,  his  wife,  their  heirs 
and  assigns  forever  for  the  same  premises,  subject 
to  said  ground  rent  of  eighteen  dollars. 

Acknowledged  same  day  and  recorded  Aug.  3, 
1802,  in  Deed  Book  E.  F.,  No.  9,  page  453,  &c. 

And  the  said  Robert  Andrews  sometime  in  the 
month  of  July,  1805,  departed  this  life  by  reason 
whereof  and  according  to  the  then  existing  laws 
of  the  Commonwealth  of  Pennsylvania  the  whole 
of  said  premises  became  vested  in  the  said  Amelia 
by  survivorship  in  fee.  And  the  said  Amelia  after- 
wards intermarried  with  a  certain  Evans  Perkins 
who  is  also  since  deceased. 

Deed. — Amelia  Perkins,  widow,  to  Jacob  F. 
Hoeckley,  in  fee.  Consideration,  $1.00  for  the 
same  premises,  subject  to  the  payment  of  said 
ground  rent  or  sum  of  eighteen  dollars. 

Duly  acknowledged  same  day  and  recorded  April 
9th,  183 1,  in  Deed  Book  A.  M.,  No.  10,  page  282, 
&c. 

(Title  to  said  ground  rent  of  $18.00.) 

Will  of  John  Redman  wherein  and  whereby, 
after  sundry  bequests,  he  did  give,  devise  and  be- 
queath all  the  rest,  residue  and  remainder  of  his 
estate  in  Pennsylvania,  and  all  and  every  his  per- 
sonal property  of  every  description  whatsoever 
unto  Phinehas  Bond,  William  Rawle  and  Samuel 
Coates,  their  heirs  and  assigns  forever,  and  to  the 
survivor  of  them,  his  heirs  and  assigns  forever, 
upon  the  special  trust  and  confidence,  &c,  as  here- 
inbefore recited. 

Duly  proven  and  registered  at  Philadelphia  in 
Will  Book  No.  2,  page  278,  &c. 

Letter    of    Atttorney. — Sarah     Coxe,    widow, 


Searches. 


229 


1837 

January     JO. 
'roduced  and 
Exd. 


1827 

Dec.    8th. 
Produced  and 
Exd. 


1827 

Dec.     6th. 
Produced  and 
Exd. 


1839 

Produced  and 
Exd. 


1831 

March    S3. 
Produced  and 
Exd. 


whereby  she  did  ordain  and  appoint  and  limit,  &c, 
as  hereinbefore  recited. 

Duly  acknowledged  and  recorded  m  Letter  of 
Attorney  Book  G.  W.  R.,  No.  1,  page  180,  &c. 

Deed. — William  Rawle  and  Samuel  Coates,  sur- 
viving devisees  in  trust,  &c,  to  John  Redman  Coxe, 
in  fee  for  inter  alia  said  ground  rent  or  sum  of 
$18.00. 

Acknowledged  same  day  and  recorded  February 
21st,  1827,  in  Deed  Book  G.  W.  R.,  No.  14,  page 
469,  &c. 

Deed. — John  Redman  Coxe  and  Sarah,  his  wife, 
to  Jacob  F.  Hoeckley,  his  heirs  and  assigns,  for 
inter  alia  said  yearly  ground  rent  or  sum  of  $18.00 
whereby  the  same  merged  in  the  fee. 

Acknowledged  same  day  and  recorded  April  9th. 
1831,  in  Deed  Book  A.  M.,  No.  10,  page  285,  &c. 

Deed. — Jacob  F.  Hoeckley  to  William  Martin, 
his  heirs  and  assigns  forever  for  said  gore  or  strip 
of  ground,  in  trust  to  permit  and  suffer  the  said 
Jacob  F.  Hoeckley,  his  heirs  and  assigns,  to  grant, 
bargain,  sell  and  convey  the  same  in  fee  simple  or 
for  such  other  estate  and  estates  as  he  or  they 
should  deem  proper. 

Acknowledged  December  7th,  1826,  and  recorded 
April  9th,  1831,  in  Deed  Book  A.  M.,  No.  10,  page 
284,  &c. 

Deed. — Jacob  F.  Hoeckley  to  John  Shaw,  in 
fee  for  premises  last  described,  reserving  a  ground 
rent  of  $45.00  per  year  payable  half  yearly  on  the 
first  day  of  the  months  of  January  and  July. 

Acknowledged  August  I,  1829,  and  recorded 
March  24th,  1831,  in  Deed  Book  A.  M.,  No.  9,  page 
497,  &c. 

Deed  Indorsed — John  Shaw  to  Jacob  Stearly, 
in  fee  for  same  premises.  Consideration,  $115.00, 
subject  to  said  ground  rent  of  $45.00. 

Acknowledged  same  day  and  recorded  March 
24th,  1831,  in  Deed  Book  A.  M.,  No.  9,  page  500, 
&c. 


230 


Conveyancing  in   Pennsylvania. 


1831 

April    6. 
Produced  and 
Exd. 


1831 

April    8th. 
Produced   and 
Exd. 


1796 

INOV.      JO. 

Exd.    Record. 


1799 
May     1. 
Exd.    Record. 


1804 

April    28. 
Exd.  Record. 


Deed   Poll   Indorsed. — Jacob   F.   Hoeckley  and 

Anna  Elizabeth,  his  wife,  to  Jacob  Stearly,  his  heirs 
and  assigns.  Consideration,  $700.  Granting  and 
extinguishing  said  ground  rent  or  sum  of  forty- 
five  dollars  ($45.00.) 

Acknowledged  April  7th,  183 1,  and  recorded 
April  9th,  1 83 1,  in  Deed  Book  A.  M.,  No.  10,  page 
288,  &c. 

Deed  Poll. — William  Martin  (consideration, 
$1.00)  releasing  unto  the  said  Jacob  Stearly,  his 
heirs  and  assigns,  all  his  estate,  right,  title,  interest, 
&c,  in  said  gore  or  strip  of  ground. 

Acknowledged  same  day -and  recorded  April  9th, 
1831,  in  Deed  Book  A.  M.,  No.  10,  page  289,  &c. 

Deed. — John  Redman  to  Thomas  Hess,  in  fee 
for  lot  of  ground  situate  on  the  south  side  of 
Coates  street  199  feet  west  of  Delaware  Third 
street  in  the  Northern  Liberties  aforesaid,  con- 
taining in  breadth  east  and  west  16  feet  and  in 
length  north  and  south  about  74  feet,  reserving 
thereout  a  certain  yearly  ground  rent  or  sum  of 
$16.00  payable  half-yearly  on  the  first  day  of  May 
and   November  in  every  year. 

Acknowledged  Dec.  24th,  1796,  by  Thomas  Hess, 
and  Jany.  18,  1797,  by  John  Redman  and  recorded 
August  22nd,  1832,  in  Deed  Book  A.  M.,  No.  24, 

page  755>  &c. 

Deed. — Thomas  Hess  and  Catharine,  his  wife, 
to  Levi  Amber,  in  fee.  Consideration,  100  pounds 
for  same  premises,  subject  to  said  ground  rent  of 
$16.00. 

Acknowledged  May  14th,  1799,  and  recorded 
January  31,  1832,  in  Deed  Book  A.  M.,  No.  18, 
page  255,  &c. 

Deed  Poll  Indorsed. — Levi  Amber  to  Peter 
Richmond,  in  fee  for  same  premises.  Considera- 
tion, $333  1-3,  subject  to  said  ground  rent  of 
$16.00. 

Acknowledged  April  30th,  1804,  and  recorded 
January  31,  1832,  in  Deed  Book  A.  M.,  No  18, 
page  257,  &c. 


Searches. 


231 


1842 

May    11. 

Produced   and 
Exd. 


1832 
Tuly  9- 

Produced  and 
Exd. 


1838 
Aug.  3. 
Exd.  Record. 


1868 

Nov.  23rd. 

Produced  and 

Exd. 


Deed.— Peter  Richmond  to  Jacob  Stearly,  in  fee 
for  premises  south  side  of  Coates  street  199  feet 
west  of  Delaware  Third  street  in  the  Northern  Lib- 
erties aforesaid,  containing  in  front  on  Coates 
street  14  feet  seven  inches  and  extending  in  length 
or  depth  southward  17  feet  gradually  widening  to 
the  breadth  of  sixteen  feet  and  from  thence  extend- 
ing the  last  mentioned  breadth  of  sixteen  feet  the 
further  depth  of  57  feet.  Consideration,  $733.34, 
subject  to  said  ground  rent  of  $16.00. 

Duly  acknowledged  May  11,  1842,  and  recorded 
May  1 2th,  1842,  in  Deed  Book  G.  S.,  No.  38,  page 
670,  &c. 

(Title  to  the  said  ground  rent  of  $16.00.) 
(For  previous  title  see  title  to  ground  rent  of 
$18.00  on  premises  adjoining  to  the  west.) 

Deed.— Jacob  F.  Hoeckley  and  Anna  Elizabeth, 
his  wife,  to  John  Kessler,  his  heirs  and  assigns,  for 
inter  alia  said  ground  rent  of  $16.00. 

Acknowledged  same  day  and  recorded  July  23rd, 
1832,  in  Deed  Book  A.  M.,  No.  26,  page  582,  &c.' 
John  Kessler  afterward  died  seised  of  said 
ground  rent.  Will  of  John  Kessler,  wherein  and 
whereby  he  did  give,  devise  and  bequeath  unto  his 
son,  John  Kessler,  and  to  his  grandson,  John  Kess- 
ler, (party  to  the  next  deed)  all  and  singular  the 
ground  rents  which  he  might  die  seised  of,  &c, 
issuing  out  of  lots,  &c,  in  the  city  of  Philadelphia! 
to  hold  to  said  son,  John  Kessler,  during  life  and 
immediately  after  his  decease  to  his  said  grandson, 
John  Kessler,  his  heirs  and  assigns,  in  trust  for  the 
benefit  of  testator's  daughter  Martha  West,  &c, 
and  giving  authority  to  release  ground  rents.  &c.' 
Duly  proven  March  26th,  1840,  and  registered 
in  Will  Book  No.  14,  page  125,  &c. 

Deed.— John  Kessler,  Jr.,  (grandson)  trustee  as 
aforesaid,  to  Jacob  Stearly,  his  heirs  and  assigns, 
extinguishing  said  ground  rent  of  $16.00  in  pur- 
suance of  the  power  and  authority  given  in  and  by 
said  recited  will. 


232 


1797 

March     I. 
Exd.    Record. 


1802 

Exd.    Record. 


i8u 

Aug.    10. 
Exd.    Record. 


Recited. 


1829 

March  a6.  _ 
Consideration 
•  190.00 
Exd.    Record. 


Conveyancing  in   Pennsylvania. 

Acknowledged  same  day  and  recorded  Nov. 
24th,  1868,  in  Deed  Book  J.  T.  O.,  No.  198,  page 
15,  &c. 

Deed. — John  Redman  to  Caspar  Albert,  in  fee 
for  premises  south  side  of  Coates  street  233  feet 
westward  from  Delaware  Third  street,  continued 
in  the  Northern  Liberties  aforesaid  containing 
in  breadth  east  and  west  16  feet  and  extending  in 
length  north  and  south  parallel  with  the  line  of 
Third  street  about  74  feet  more  or  less,  reserving 
ground  rent  of  16  Spanish  milled  silver  dollars  in 
equal  half-yearly  payments  on  the  first  day  of  Jan- 
uary and  July  of  every  year. 

Acknowledged  May  26th,  1797,  and  recorded 
February  23rd,  1818,  in  Deed  Book  M.  R.,  No. 
18,  page  100,  &c. 

Deed. — Caspar  Albert  and  Eve,  his  wife,  to 
Martha  Jones  and  Esther  Timany,  in  fee  for  the 
same  premises,  subject  to  said  ground  rent  of 
$16.00. 

Acknowledged  August  10th,  1802,  and  recorded 
February  23,  1818,  in  Deed  Book  M.  R.,  No.  18, 
page  102,  &c. 

Deed  Poll  Indorsed. — Martha  Jones  to  Esther 
Timany,  her  heirs  and  assigns,  for  all  her  moiety, 
estate,  right,  title,  and  interest  in  said  premises, 
subject  to  said  ground  rent  of  $16.00. 

Acknowledged  same  day  and  recorded  Feby. 
23rd,  1818,  in  Deed  Book  M.  R.,  No.  18,  page 
104,  &c. 

And  the  said  Esther  Timany  married  Lancaster 
Thomas. 

Deed  Poll. — Jacob  Strembeck,  Esq.,  high  sher- 
iff, to  Peter  H.  Edenborn,  in  fee  for  the  same 
premises,  subject  to  the  said  ground  rent  or  sum  of 
$16.00.  Taken  in  execution  and  sold  Wednesday, 
March  18th,  1829,  as  the  property  of  Esther 
Thomas. 

Acknowledged  in  open  district  court  on  June  1, 
1829,  and  entered  among  the  records  thereof  in 
Book  E,  page  270,  and  recorded  in  the  office  of  the 


Searches. 


233 


1831 

April_    29th. 
Consideration 


IS 


d.    Record. 


1831 

iuly  9th. 
'reduced  and 
Exd. 


183?. 

April    3. 

Consideration 

$900. 

Produced  and 

Exd. 


1796 

Nov.    30. 
Exd.    Record. 


1798 

January  2$. 
Consideration 
jo   L. 

Produced  and 
Exd. 


Recorder  of  Deed  at  Philadelphia  on  May  16th, 
183 1,  in  Deed  Book  A.  M.,  No.  14,  page  171,  &c. 

Deed. — Peter  H.  Edenborn  and  Susan,  his  wife, 
to  John  Kessler,  in  fee  for  same  premises,  subject 
to  said  ground  rent  of  $16.00. 

Acknowledged  same  day  and  recorded  May  16th. 
1831,  in  Deed  Book  A.  M.,  No.  14,  page  169,  &c. 

(Title  to  said  ground  rent  of  $16.00.) 

For  prior  title  see  title  to  ground  rent  of  $18.00 
on  premises  adjoining  on  the  east. 

Deed. — Jacob  F.  Hoeckley  and  Anna  Elizabeth, 
his  wife,  to  John  Kessler,  his  heirs  and  assigns, 
releasing  and  extinguishing  said  ground  rent  of 
$16.00,  (whereby  said  ground  rent  merged). 

Acknowledged  July  9th,  1831,  recorded  July 
nth,  1831,  in  Deed  Book  A.  M.,  No.  12,  page  674. 

Deed. — John  Kessler  to  Jacob  Stearly,  in  fee 
for  premises  last  described. 

Acknowledged  same  day  and  recorded  April  8, 
1833,  in  Deed  Book  A.  M.,  No.  ^>  page  577,  &c. 

Deed. — John  Redman  to  Levi  Amber,  in  fee  for 
premises  south  side  of  Coates  street  184  feet  west- 
ward from  Delaware  Third  street  in  the  Northern 
Liberties  aforesaid  containing  in  breadth  east 
and  west  15  feet  and  in  length  or  depth  north  and 
south  74  feet,  reserving  thereout  a  yearly  ground 
rent  of  15  Spanish  milled  dollars  payable  in  equal 
half-yearly  payments  on  the  first  day  of  the  months 
of  May  and  November  in  every  year. 

Acknowledged  January  18th,  1797,  by  John  Red- 
man and  December  24th,  1796,  by  Levi  Amber  and 
recorded  January  25th,  1809,  in  Deed  Book  E.  F., 
No.  32,  page  350,  &c. 

Deed. — Levi  Amber  and  Susanna,  his  wife,  to 
Ulrich  Rucksruhl,  in  fee  for  the  same  premises  to- 
gether with  a  certain  gore  or  triangular  piece  of 
ground  adjoining  on  the  northeast  corner  of  the 
last  described  lot,  containing  in  breadth  on  said 
Coates  street  one  foot  five  inches  or  thereabouts 
and  in  length  extending  southward  eighteen  feet 


234 


i8i4 

April     4. 
Produced  and 
Exd. 


1805 

A  uff.    13. 

Exd.    Record. 


1820 

January    12. 

Consideration 

$180. 

Exd.    Record. 


1826 
July   24th. 


Conveyancing   in   Pennsylvania. 

gradually  narrowing  to  a  point  at  the  south  end 
(said  gore  being  part  of  a  lot  13  feet  four  inches  in 
breadth  on  said  Coates  street,  which  the  said  John 
Redman  by  indenture  dated  October  19th,  1797, 
and  granted  unto  Levi  Amber  in  fee),  under  and 
subject  to  the  payment  of  said  yearly  ground  rent 
of  $15.00. 

Duly  acknowledged  January  26th,  1798,  and  not 
recorded. 

Deed. — Ulrich  Ruckstuhl  and  Margaret,  his 
wife,  to  Jacob  Steady,  in  fee  for  the  same  prem- 
ises, subject  to  said  ground  rent  of  $15.00.  Con- 
sideration, $850.00. 

Duly  acknowledged  same  day  and  recorded  May 
9th,  1823,  in  Deed  Book  I.  H.,  No.  9,  page  1,  &c. 
(Title  to  said  ground  rent  of  $15.00.) 
Deed. — John  Redman  to  the  corporation  by  the 
name,  style  and  title  of  "The  Trustees  of  the  Sec- 
ond Presbyterian  Church  in  the  City  of  Philadel- 
phia," their  successors  and  assigns,  for  said  ground 
rent  of  $15.00.     Consideration,  $1.00. 

Duly  proven  December  28th,  1808,  and  recorded 
in  Deed  Book  E.  F.,  No.  32.  page  355,  &c,  on  Jan- 
uary 25th,  1809. 

Deed. — "The  Trustees  of  the  Second  Presbyter- 
ian Church  in  the  City  of  Philadelphia"  to  James 
Lyle,  his  heirs  and  assigns,  for  said  ground  rent 
of  $15.00. 

Recorded  January  13th,  1820,  in  Deed  Book  I. 
W.,  No.  5,  page  88,  &c. 

The  said  James  Lyle  died  seised  of  the  said 
ground  rent  of  $15.00. 

Will  of  James  Lyle  wherein  he  authorized  and 
empowered  his  executors  and  the  survivors  and  sur- 
vivor of  them  to  make  sale  and  conveyance  of  any 
part  or  the  whole  of  his  estate,  real  and  personal, 
and  to  vest  full  and  perfect  title  in  the  purchasers 
and  nominated  John  B.  Newman,  Hartman  Kuhn 
and  Henry  Beckett  as  executors. 


Searches. 


235 


1830 

AprH    14. 
Consideration 
$250. 

Produced   and 
Exd. 


•  831 

April    8th. 
Produced   and 
Exd. 


Recited. 


June    14. 
Exd.    Record. 


Duly  proven  and  registered  in  Will  Book  No 
8,  page  618,  &c. 

Deed  Poll.— John  B.  Newman,  Hartman  Kuhn 
and  Henry  Beckett,  executors  of  the  last  will  and 
testament  of  James  Lyle,  deceased,  to  Jacob  Stear- 
ly,  his  heirs  and  assigns,  extinguishing"said  ground 
rent  of  $15.00. 

Acknowledged  same  day  and  recorded  April 
15th,  1830,  in  Deed  Book  G.  W.  R.,  No.  36,  page 
37 *>  &c. 

Deed.— Jacob  Steady  and  Mary  M.,  his  wife, 
to  Isaac  Griffith,  his  heirs  and  assigns.  Considera- 
tion, $300,  granting  and  confirming  unto  said 
Isaac  Griffith,  his  heirs  and  assigns,  a  certain 
yearly  rent  charge  or  sum  of  eighteen  Spanish 
milled  silver  dollars  to  be  yielding  and  paying  and 
to  be  had,  taken  and  received  in  half-yearly  pay- 
ments on  the  first  day  of  the  months  of  October  and 
April  in  every  year,  without  deduction  for  taxes, 
&c,  out  of  premises  situate  on  the  south  side  of 
Coates  street  at  the  distance  of  215  feet  west  of 
Delaware  Third  street  in  the  Northern  Liberties 
aforesaid,  containing  in  breadth  east  and  west 
eighteen  feet  and  in  length  or  depth  north  and 
south  between  parallel  lines  with  said  Third  street 
about  seventy-four  feet  more  or  less.  And  also 
out  of  a  certain  gore  or  strip  of  ground  situate 
on  the  south  side  of  Coates  street  adjoining  the 
above  described  lot  on  the  east,  containing  in 
breadth  on  said  Coates  street  about  seventeen 
inches  and  in  length  southward  seventeen  feet 
gradually  narrowing  to  a  point. 

Acknowledged  same  day  and  recorded  April 
9th,  1831,  in  Deed  Book  A.  M.,  No.  10!  page  295, 

The  said  Isaac  Griffith  being  so  seised  of  inter 
aha  said  ground  rent  of  $18.00,  departed  this  life. 

Will  of  Isaac  Griffith,  whereby  he  did  give  and 
devise  said  ground  rent  in  his  residuary  estate 
unto  his  son  Lukens  Griffith,  his  heirs  and  assigns 

Duly  proved  July  6th,   1849,  and  remaining  on 


236 


Conveyancing   in   Pennsylvania. 


1850 

Dec.    21. 
Exd.    Record. 


Feby.  5tk 
i8s« 

Produced   and 
Exd. 


J  88  J 

Mar.    14. 
Exd.    Record. 


record  at  Philadelphia  in  Will  Book  No.  22,  page 

333.  &c. 

Letter  of  Attorney. — Lukens  Griffith  and  Sarah, 
his  wife,  to  Anthony  P.  Morris,  giving  full  power 
to  release  and  extinguish  said  ground  rent  of 
$18.00. 

Duly  acknowledged  and  recorded  in  Letter  of 
Attorney  Book  G.  W.  C,  No.  1,  page  598,  &c. 

Deed. — Lukens  Griffith  and  Sarah,  his  wife,  by 
their  said  attorney,  to  Jacob  Steady,  his  heirs  and 
assigns  releasing  and  extinguishing  said  ground 
rent  of  18  Spanish  milled  silver  dollars.  Consider- 
ation, $275. 

Acknowledged  same  day  and  recorded  February 
10th,  185 1,  in  Deed  Book  G.  W.  C,  No.  82,  page 
202,  &c. 

By  virtue  of  the  several  conveyances  made  to 
said  Jacob  Stearly  as  hereinbefore  recited,  he  be- 
came seised  in  his  demesne  as  of  fee  of  the  prem- 
ises in  question  described  at  the  head  of  this  brief, 
and  being  so  seised  thereof  departed  this  life  on 
the  22nd  day  of  July,  Anno  Domini  1883,  having 
first  made  and  published  his  last  will  and  testament 
as  follows : 

Will  of  Jacob  Stearly,  deceased,  wherein  and 
whereby,  after  directing  the  payment  of  his  just 
debts  and  funeral  expenses,  he  did  will  as  follows, 
viz :  Item — I  give,  devise  and  bequeath  all  the  rest, 
residue  and  remainder  of  my  estate,  real  and  per- 
sonal and  mixed,  whatsoever  and  wheresoever 
the  same  may  be  situate  and  of  which  I  may  die 
seised,  possessed  or  entitled  to  in  manner  following, 
to  wit,  one  full  equal  fifth  part  thereof  unto  my 
grandchild,  Clara  V.  Smith,  her  heirs,  executors, 
administrators  and  assigns  forever  absolutely. 
One  full  equal  fifth  part  thereof  unto  my  grand- 
child, Emma  E.  Stearly,  her  heirs,  executors,  ad- 
ministrators and  assigns  forever  absolutely. 
One  full  equal  fifth  part  thereof  unto  my  grand- 
child, Ida  I.  Newton,  her  heirs,  executors,  adminis- 
trators and  assigns  forever  absolutely.     One  full 


Searches.  237 

equal  fifth  part  thereof  unto  my  grandchild,  Mary 
Rainier,  her  heirs,  executors,  administrators  and 
assigns  forever  absolutely,  and  the  remaining  one- 
fifth  part  thereof  unto  my  grandchild  Mary  Leath 
Courtney,  her  heirs,  executors,  administrators  and 
assigns  forever  absolutely. 

Duly  proven  July  30th,  1883,  and  registered  at 
Philadelphia  in  Will  Book  No.  in,  page  263,  &c. 
Recited.  All  of  the  devisees  named  in  said  recited  will 

are  of  full  age  except  the  said  Mary  Leath  Court- 
ney. 
>883  At  an  orphans'  court  for  the  city  and  county  of 

December  a9th?  PhiIadelphia)  held  at  Philadelphia,  upon  the  peti- 
tion of  the  said  Mary  Leath  Courtney,  who  was 
then  above  the  age  of  fourteen  years,  The  Fidelity 
Insurance,  Trust  and  Safe  Deposit  Company  was 
appointed  guardian  of  her  estate. 
j£?v  aoth  At  an  orPhans'  court  for  the  city  and  county  of 

Ex«k  Record.  Philadelphia,  held  at  Philadelphia,  the  petition  of 
the  said  "The  Fidelity  Insurance,  Trust  and  Safe 
Deposit  Company,"  guardian  as  aforesaid,  was  pre- 
sented, setting  forth  "That  the  said  Mary  Leath 
Courtney  is  seised  in  her  demesne  as  of  fee  of  and 
in  an  equal  undivided  fifth  part  or  share  of  and  in 
the  real  estate  therein  particularly  described  (be- 
ing the  premises  conveyed  by  the  next  deed.)  That 
all  the  other  parties  interested  in  said  real  estate 
being  sui  juris  are  anxious  and  desirous  of  dis- 
posing of  the  same."  That  Peter  S.  Dildine,  of  the 
city  of  Philadelphia,  has  offered  to  purchase  the 
said  real  estate  for  the  price  or  sum  of  $16,000.00, 
clear  of  all  encumbrances,  and  all  the  other  owners 
of  said  real  estate  have  agreed  to  sell  at  said  price 
and  are  anxious  and  desirous  that  the  proper  and 
necessary  deeds  and  assurances  for  said  real  estate 
should  be  executed  to  the  said  Peter  S.  Dildine 
and  a  perfect  title  for  the  same  made  to  him,  but 
are  prevented  from  so  doing  on  account  of  the  in- 
ability of  the  petitioners  to  join  with  them  in  the 
execution  and  delivery  of  said  deeds  as  guardian 
aforesaid   without   the   consent   and   order  of   the 


238  Conveyancing   in   Pennsylvania. 

court.  That  the  said  price  offered  for  said  real 
estate  is  much  greater  than  the  assessed  value  of 
the  same  *  *  *  *  and  that  the  said  amount  is,  to 
the  best  of  petitioner's  knowledge  and  belief,  as 
large  a  price  as  can  now  be  obtained  for  said 
property.  That  is  to  the  advantage  of  said  min- 
or's estate  that  said  real  estate  should  be  sold,  in- 
asmuch as  the  same  is  in  great  need  of  repair  and 
in  a  dilapidated  condition."  The  petitioners 
therefore  prayed  the  court  to  approve  of  the  price 
offered  for  said  real  estate  and  authorize  them  to 
sell  the  said  minor's  undivided  fifth  interest  there- 
in for  one-fifth  of  the  said  price  offered  as  afore- 
said, viz :  $3,200.00,  and  that  they  be  authorized, 
ordered  and  directed  as  guardian  of  said  Mary 
Leath  Courtney  to  join  with  the  other  owners  of 
the  said  real  estate  in  the  execution  and  delivery  of 
the  proper  and  necessary  deed  or  deeds  and  other 
assurances  needful  and  necessary  for  vesting  and 
conveying  said  real  estate  to  the  said  Peter  S.  Dil- 
dine  in  fee  simple. 

Whereupon  the  said  court,  upon  due  consider- 
ation of  the  said  petition,  ordered  and  decreed 
that  the  said  "The  Fidelity  Insurance,  Trust  and 
Safe  Deposit  Company,"  guardian  of  said  minor 
be  authorized  to  sell  the  said  minor's  one  full  equal 
and  undivided  fifth  part  or  share  of  and  in  the 
real  estate  in  said  petition  described,  for  the  price 
or  sum  of  $3,200.00,  to  Peter  S.  Dildine,  his  heirs 
and  assigns,  and  that  the  said  "The  Fidelity  In- 
surance and  Safe  Deposit  Company,"  guard- 
ian as  aforesaid,  be  authorized  and  directed  to 
make,  execute  and  deliver,  or  join  with  the  other 
owners  of  said  real  estate  in  the  execution  and  de- 
livery of  all  and  every  deed  or  deeds  or  other  as- 
surances in  the  law  necessary  to  vest  said  minor's 
undivided  fifth  part  or  share  in  said  real  estate  in 
the  said  Peter  S.  Dildine,  in  fee  simple,  and  that 
said  minor's  undivided  interest  in  said  real  estate 
so  sold  be  and  remain  to  the  said  Peter  S.  Dildine. 
his  heirs  and  assigns,  firm  and  stable  forever,  and 


Searches.  230 

the  said  guardian  was  thereby  authorized  to  re- 
ceive and  receipt  for  said  purchase  money,  and  the 
said  court  further  ordered  that  security  be  en- 
tered by  said  guardian  in  the  sum  of  $6,400.00,  and 
approved  of  the  bond  of  the  said  "The  Fidelity 
Insurance  and  Safe  Deposit  Company"  as  such 
security,  which  security  has  been  duly  entered. 
i&!  ,6th.  Deed.— Luther  G.  Smith  and  Clara  V.  Smith,  his 

produced  and  wife,  Emma  E.  Steady,  John  Newton  and  Ida  I. 
Newton,  his  wife,  and  Mary  Rainer  of  the  first 
part,  and  "The  Fidelity  Insurance,  Trust  and  Safe 
Deposit  Company,"  guardian  of  the  estate  of  the 
said  Mary  Leath  Courtney,  a  minor,  of  the  second 
part,  to  Peter  S.  Dildine,  in  fee  for  the  premises 
in  question  described  at  the  head  of  this  brief, 
described  however,  in  five  separate  lots  as  shown 
upon  the  plan  on  the  second  page  of  this  brief. 
Consideration,  $16,000. 

Duly  acknowledged  the  16th  day  of  December. 
1884,  and  recorded  December  20th,  1884,  in  Deed 
Book  J.  O.  D.,  No.  238,  page  528,  &c. 


CHAPTER  XIII. 
Real  Estate  Agents  and  Brokers. 

Page.  Page. 

191.  Modern  Real  Estate  Busi-  196.  Relation    of    Real    Estate 

ness.     Who  is  a  Broker  240  Broker    to    Client    Re- 

192.  Real    Estate   Broker  must  garded    by    Law    as    a 

be  Licensed   241  Confidential  One  244 

193.  Effect  of  Not  Obtaining  a  197.  Authority   of   a    Real   Es- 

License    241  tate  Agent  to  Act 244 

194.  When  a  Broker  is  Entitled  198.  Right  of  Principal  to  Can- 

to His  Commissions  ...  242  eel  Agency 245 

195.  When  a  Broker  is  Not  En-  199.  When  a  Broker  is  Person- 

titled  to  Commissions..  243  ally  Liable  246 

190.    Modern  Real  Estate  Business.    Who  Is  a  BrokerP 

The  business  of  an  old-time  conveyancer  consisted  for  the 
most  part  of  preparing  legal  documents  of  all  description,  draw- 
ing deeds,  mortgages  and  like  instruments,  drafting  wills,  etc., 
and  searching  title.  The  buying  and  selling  of  real  estate  was 
at  the  most  a  mere  incident  of  his  business.  From  the  very 
nature  of  the  business  transacted  the  old-time  conveyancer  was 
a  man  of  great  learning.  He  studied  faithfully  and  served  a 
long  apprenticeship  before  he  essayed  to  start  in  business  for 
himself.  His  knowledge  of  the  technical  points  of  conveyancing 
and  the  law  of  real  estate  was  profound.  Indeed,  fifty  years 
ago  many  of  the  conveyancers  were  better  versed  in  real  estate 
law  than  most  lawyers.  A  radical  change  has  come  over  the 
business,  due  mainly  to  the  rise  of  the  title  insurance  companies, 
as  set  forth  in  the  next  chapter.  In  the  larger  cities,  few,  if  any, 
real  estate  agents  search  title.  About  all  the  conveyancing  that 
a  modern  real  estate  agent  now  does  is  drawing  agreements,  in- 
struments and  leases.  The  greatest  bulk,  by  far,  of  his  business 
is  buying,  selling  and  renting  real  estate  on  commissions.  He 
is  more  of  a  broker  than  a  conveyancer,  although  that  term 
is  still  used  in  conjunction  with  "agent"  and  "broker."  It  is  the 
modern  business  we  are  interested  in  and,  therefore,  in  this  chap- 
ter we  will  treat  of  the  law  relating  to  real  estate  agents  and 
brokers.    The  law  requires  all  real  estate  brokers  to  be  licensed 

240 


Real  Estate  Agents  and  Brokers.  241 

so  that  it  becomes  necessary  to  know  who  is  and  who  is  not  a 
broker. 

A  broker  is  a  person  engaged  in  the  negotiation  of  contracts. 
Persons  whose  business  it  is  to  bring  buyer  and  seller  together 
(Keys  v.  Johnson,  68  Pa.  43).  A  real  estate  broker  is  one  who 
engages  in  the  purchase  and  sale  of  real  estate  as  a  business  and 
occupation  and  holds  himself  out  to  the  public  in  that  character 
and  capacity  (Chadwick  v.  Collins,  26  Pa.  138). 

192.  Real  Estate  Broker  Must  be  Licensed. 

By  act  of  assembly  (April  10,  1849,  P«  L.  573,  Sec.  8)  in 
Pennsylvania  all  real  estate  brokers  must  be  licensed.  This  li- 
cense is  isued  by  the  county  treasurer  and  may  be  obtained  upon 
application  to  the  treasurer  of  the  county  wherein  the  applicant 
resides  and  does  business.  The  license  authorizes  the  broker, 
under  the  seal  of  said  county  to  exercise  his  occupation  for  the 
term  of  one  year  from  the  date  of  the  commission.  Each  and 
every  succeeding  year  he  must  pay  a  new  license  fee  and  obtain 
a  new  license.  Real  estate  brokers  must  pay  fees  for  the  licenses 
depending  upon  the  amount  of  business  they  do.  By  Act  of  April 
15,  1850  (P.  L.  772),  as  amended  by  Act  of  June  7,  1901,  P.  L. 
534,  Sec.  1,  they  must  pay  for  use  of  the  Commonwealth  a  tax 
equal  to  3%  of  their  total  business,  in  addition  to  the  license  fee, 
and  this  whether  the  business  is  carried  on  by  individuals,  firms, 
or  corporations  (Act  of  April  14,  1905,  Sec.  1,  P.  L.  161).  The 
mercantile  appraisers  are  required  to  appraise  the  amount  of 
business  and  assess  said  brokers  accordingly,  just  as  persons  en- 
gaged in  mercantile  business. 

In  Philadelphia,  this  is  usually  done  by  the  mercantile  ap- 
praisers distributing  blanks  ten  days  before  the  time  of  return, 
which  blank  the  broker  is  required  to  fill  out  and  set  forth  under 
oath  the  volume  of  business  he  does. 

193.  Effect  of  Not  Obtaining  a  License. 

If  a  real  estate  broker  is  not  properly  licensed  one  of  the 
serious  effects  that  follows  is,  that  he  cannot  recover  his  com- 
mission should  he  be  compelled  to  sue  therefor.  The  license  must 
be  obtained  and  tax  paid  before  the  transaction  sued  on ;  a  subse- 
quent compliance  with  the  law  by  the  broker  will  not  cure  a 
previous  illegal  transaction  (Luce  v.  Cook,  227  Pa.  224).  Not 
every  person  who  sells  real  estate  for  another  is  necessarily 


242  Conveyancing  in  Pennsylvania. 

such  a  broker  within  the  meaning  of  the  act  as  to  require  him  to 
be  licensed.  An  occasional  or  casual  sale  does  not  make  the  ne- 
gotiator thereof  a  broker.  So  it  was  said  in  a  case  (Chadwick  v. 
Collins,  26  Pa.  138)  that  any  person  may  lawfully  employ  one 
who  is  not  a  real  estate  broker  to  buy  or  sell  real  estate,  and 
where  such  employment  takes  place  it  must  be  paid  for.  The 
test  seems  to  be  whether  or  not  the  person  is  engaged  in  the 
business  of  real  estate  broker,  not  whether  he  makes  a  sale  of  real 
estate.  In  the  case  of  Woods  v.  Heron  (229  Pa.  625),  the 
Supreme  Court  said,  "A  person  suing  for  commission  on  sale 
of  real  estate  will  not  be  barred  from  recovery  by  reason  of  not 
having  a  broker's  license,  where  there  is  no  evidence  that  he  was 
doing  business  as  a  real  estate  broker  at  the  date  of  the  contract 
set  up  by  him. 

194.     When  a  Broker  Is  Entitled  to  His  Commissions. 

A  real  estate  broker  has  earned  his  commission  when  he  pro- 
cures a  party  with  whom  his  principal  is  satisfied,  who  actually 
contracts  for  the  property  at  a  price  satisfactory  to  the  owner 
even  though  the  purchaser  afterward  attempts  to  avoid  the  con- 
tract (Buchfield  v.  Griffith,  10  Sup.  Ct.  618;  Holmes  v.  Neaffi, 
151  Pa.  392;  Hippie  v.  Laird,  189  Pa.  472).  Where  a  sale  has 
resulted  from  the  efforts  of  the  broker,  even  where  such  efforts 
amounted  to  a  mere  introduction  of  the  property  to  the  buyer, 
whether  by  advertisement  or  sign,  he  is  entitled  to  his  commis- 
sions (Keys  v.  Johnson,  68  Pa.  42).  Says  the  Superior  Court 
(Peters  v.  Holmes,  45  Superior  Ct.  278),  "It  is  not  material  that 
the  sale  was  made  directly  with  the  owner  if  the  broker  brought 
the  parties  together  and  a  sale  resulted  from  the  broker's  inter- 
vention." "When  a  real  estate  broker  is  duly  authorized  to 
sell  property  by  a  private  sale  and  has  commenced  negotiations 
with  a  purchaser  the  owner  cannot,  while  such  negotiation  is 
pending,  take  it  into  his  own  hands  and  complete  it,  either  above 
or  below  the  price  first  mentioned,  and  refuse  to  pay  commis- 
sions (Warne  v.  Johnson,  48  Sup.  98).  Where  a  broker  is  em- 
ployed to  negotiate  a  loan  he  is  entitled  to  his  commission  when 
he  brings  to  his  principal  a  party  ready  and  willing  to  take  the 
loan  (Fenn  v.  Dickey,  178  Pa.  258).  If  a  sale  fails  because  the 
vendor  i?  unable  to  make  title,  his  broker  is  nevertheless  entitled 
to  his  commissions  (Kifer  v.  Yoder,  198  Pa.  308).  An  owner, 
who  promises  to  pay  a  broker  commissions  if  he  sells  his  prop- 


Real  Estate  Agents  and  Brokers.  243 

erty  at  a  certain  price,  and  refuses  to  sell  when  the  broker  pro- 
duces a  purchaser  willing  to  buy  at  that  price,  is  nevertheless 
liable  for  the  commissions  (Miller  v.  Kenneck,  20  D.  R.  706). 

An  agreement  under  seal  by  the  vendor  promising  to  pay  a 
commission  to  an  agent,  whether  the  sale  be  made  by  him  or 
any  other  person  is  valid  and  binding,  the  court  holding  that  the 
seal  imported  a  consideration  and  that  the  mere  harshness  of 
the  bargain  was  no  defense  (Ownes  v.  Werle,  14  Sup.  Ct.  536). 

195.     When  a  Real  Estate  Broker  is  Not  Entitled  to  Commissions. 

Before  a  real  estate  broker  is  entitled  to  his  commissions  there 
must,  of  course,  be  sale,  although  this  does  not  mean  that  a  sale 
must  be  consummated  by  him ;  it  is  enough  if  he  brings  the  parties 
together  and  sale  is  consummated  directly  by  the  parties.  A 
broker  employed  to  sell  real  estate  is  entitled  to  his  commissions 
when  he  has  procured  a  purchaser  satisfactory,  bona  fide,  to 
the  vendor,  with  whom  a  valid  enforceable  agreement  of  sale  is 
executed  even  though  afterwards  the  vendee  refuses  to  take  title 
(Hippie  v.  Laird,  189  Pa.  472;  Seabury  v.  Insurance  Co.,  205  Pa. 
234;  Taylor  v.  Foltz,  24  Pa.  Super.  1).  But  it  seems,  not  unless 
some  purchase  money  is  paid  on  account  which  the  vendor  has 
forfeited  ( Schurr  v.  Warnick,  1 1  D.  R.  1 ) . 

A  real  estate  broker  must  not  be  disloyal  or  he  forfeits  his 
right  to  commissions.  Thus,  where  a  broker  concealed  from  his 
principal  the  name  as  well  as  the  fact  that  a  purchaser  was  the 
owner  of  an  adjoining  lot  so  that  said  principal  would  not  raise 
his  price,  the  court  held  the  broker  was  not  entitled  to  his 
commissions  (Wilkinson  v.  McCullough,  196  Pa.  205). 

Another  and  more  familiar  example  of  disloyalty  is  where  a 
broker  secretly  represents  Doth  seller  and  buyer.  An  agent  must 
not  act  for  both  parties.  If  he  attempts  to  represent  both  vendor 
and  vendee  without  disclosing  to  them  that  he  so  represents 
them,  he  cannot  recover  his  commissions  from  either  (Addison  v. 
Wanamaker,  185  Pa.  536;  Marshall  v.  Reed,  32  Pa.  Superior 
Ct.  60).  Subsequent  ratification  like  prior  permission  excuses 
the  misconduct  and  entitles  the  broker  to  his  commission  as 
against  the  one  who  condones  the  misconduct  (Moore  v.  Grow, 
1  Sup.  Ct.  125).  If  an  agent  is  to  represent  both  parties  it  must 
be  expressly  agreed  by  them  to  pay  him  a  commission  before  he 
can  recover  (Maxwell  v.  West,  23  Pa.  C.  C.  302). 


244  Conveyancing  in   Pennsylvania. 

Unless  the  broker  who  brought  about  the  sale  was  actually 
employed  to  act  by  the  owner  he  cannot  recover  against  him 
(Wireman's  Estate,  43  W.  N.  C.  334;  Samuels  v.  Luckenbach, 
205  Pa.  428;  Henderson  v.  Sonneborn,  30  Pa.  Superior  Ct.  182). 
When  a  real  estate  broker's  employment  is  by  its  terms  not  ex- 
clusive and  his  commissions  are  made  conditional  upon  the  actual 
securing  of  a  signature  to  a  lease  and  a  down  payment  thereon, 
commissions  are  not  earned  by  the  broker  merely  bringing  to- 
gether the  owner  of  the  property  and  a  prospective  tenant 
(Barber  v.  Miller,  41  Superior  Ct.  442). 

196.  Relation  of  Real  Estate  Broker  to  Client  Regarded  by  Law  as 

a  Confidential  One. 
The  relation  of  a  real  estate  broker  to  his  client  is  a  confidential 
one  and,  therefore,  he  must  be  loyal  and  steadfast  in  his  al- 
legiance. Aside  from  the  penalty  inflicted  by  law  upon  a  dis- 
loyal agent  it  is  to  the  best  interest  of  a  broker  to  make  as  ad- 
vantageous bargain  for  his  client  as  possible,  otherwise  he  will 
soon  find  himself  discredited  and  his  business  ruined.  An  agent 
who  deliberately  buys  from  a  client  through  a  straw  man  and 
re-sells  to  a  purchaser  for  a  higher  price  is  guilty  of  a  gross 
fraud,  the  discovery  of  which  will  inevitably  result  in  destroying 
his  business  reputation,  while  he  will  be  compelled  by  the  court  to 
return  his  ill-gotten  gains.  The  courts  of  equity  are  prompt 
to  give  relief  when  such  a  betrayal  of  confidence  takes  place,  no 
matter  under  what  device  concealed  (Power  v.  Black,  159  Pa. 
153).  No  agent  ought,  therefore,  ever  purchase  from  his  prin- 
cipal unless  he  does  it  openly  and  not  even  then  if  he  does  it 
merely  for  the  purpose  of  re-selling  to  a  person  whom  he  knows 
is  desirous  of  purchasing. 

197.  Authority  of  Real  Estate  Agent  to  Act. 

The  general  rules  of  the  law  of  agency  apply  to  real  estate 
agents.  In  other  words,  he  has  not  only  such  authority  as  his 
principal  expressly  gives  him,  but  also  such  as  is  apparently 
conferred  upon  him  by  conduct  of  his  principal.  Thus,  where  a 
real  estate  broker  acts  contrary  to  his  instructions,  his  principal 
will  be  bound  by  such  acts  as  are  within  the  scope  of  the  au- 
thority which  the  agent  was  held  out  to  the  world  to  possess 
(McNeile  v.  Cridland,  168  Pa.  16;  Grasseli  Chemical  Co.  v. 
Biddle  Co.,  22  Pa.  Superior  Ct.  426).     So,  too,  an  act  done  in 


Real  Estate  Agents  and  Brokers.  245 

excess  of  authority,  if  ratified  either  expressly  or  by  conduct 
becomes  just  as  binding  upon  the  principal  as  though  he  previ- 
ously authorized  it.  Thus,  where  an  agent  sells  for  a  less  price 
than  that  fixed  by  the  owner,  if  the  owner  accepts  the  deposit 
money  knowing  of  his  agent's  violation  of  instructions,  he  is  held 
to  have  ratified  the  bargain.  It  has  been  held  (Phila.  Trust  Co.  v. 
Roberts,  14  W.  N.  C.123;  Cavanaugh  v.  Buehler,  120  Pa.  441), 
in  case  of  a  loss  through  embezzlement,  where  an  agent  negoti- 
ating a  loan  is  agent  for  both  lender  and  borrower  that  the 
lender  should  suffer  in  preference  to  the  borrower  because  he 
permitted  the  transaction  to  be  conducted  in  such  a  way  as 
to  give  opportunity  for  the  loss  to  occur.  It  should  be  remem- 
bered that  authority  to  loan  money  and  take  security  for  its 
payment  implies  no  authority  to  collect  it  (Isaacs  v.  Zugsmith, 
103  Pa.  yy).  Nor  does  the  authority  to  enter  into  a  lease  for 
the  principal  imply  any  authority  in  the  agent  to  cancel  or  receive 
a  surrender  of  it. 

Authority  for  an  agent  to  sign  an  agreement  of  sale  must  be 
in  writing  else  under  the  State  of  Frauds  it  would  not  be  binding 
on  the  principal  (Parish  v.  Koons,  1  Pars.  78 ;  Darlington  v.  Dar- 
lington, 160  Pa.  65).  Nor  can  a  lease  for  a  longer  term  of  three 
years  be  made  by  an  agent  unless  his  authority  be  in  writing. 
It  is,  therefore,  good  practice  for  every  broker  to  require  his 
principal  to  give  him  written  authority  both  to  sell  and  lease,  as 
well  as  stipulate  the  commissions  to  be  paid.  In  this  way  much 
misunderstanding  and  litigation  may  be  avoided. 

198.  When  a  Broker  is  Personally  Liable. 

The  principal,  unless  bound  by  agreement  for  a  definite  period, 
may  revoke  the  agency  at  any  time,  but  he  cannot  take  his  prop- 
erty out  of  the  broker's  hands  during  the  pendency  of  negotia- 
tions for  the  mere  purpose  of  depriving  the  broker  of  his  com- 
missions (Kelly  v.  Marshall,  172  Pa.  396;  Black  v.  Pentony, 
30  Superior  41 ) .  Where  the  agent  has  partly  performed  his  con- 
tract he  is,  of  course,  entitled  to  some  compensation  when  his 
authority  is  revoked  (Stamets  v.  Denniston,  193  Pa.  548). 

199.  When  a  Broker  is  Personally  Liable. 

Every  agent  impliedly  agrees  when  employed  that  he  will  use 
reasonable  care,  skill  and  diligence  in  performing  his  duties.  As 
said  by  Mr.  Justice  Coulter,  in  Wingate  v.  Mechanics'  Bank,  10 


246  Conveyancing  in   Pennsylvania. 

Pa.  108:  "If  an  agent  undertakes  to  do  a  specific  thing  for  a 
stipulated  reward,  he  is  bound  to  exercise  due  diligence  to  ac- 
complish what  he  has  agreed  to  do,  and  to  observe  good  faith 
toward  his  principal  in  every  step,  either  of  success  or  failure 
towards  accomplishing  the  end.  The  law  implies  a  promise  from 
brokers,  bankers,  agents  and  attorneys  that  they  will  severally 
in  their  respective  callings  exercise  competent  skill  and  proper 
care  in  the  service  they  undertake  to  perform,  in  which,  if  they 
fail,  an  action  lies  to  recover  damages  for  breach  of  their  implied 
promise." 

By  law,  whenever  a  person  presumes  to  act  for  another  with- 
out authority,  or  if  he  exceeds  his  authority,  he  is  personally 
liable  to  a  person  with  whom  he  deals  for  his  principal.  So, 
where  an  agent  bid  at  a  sheriff's  sale  a  sum  higher  than  he  was 
authorized  to  bid  he  became  personally  liable  and  not  the  prin- 
cipal (Hampton  v.  Specknagle,  9  S.  &  R.  212;  Simpson  v. 
Kerkeslager,  41  Superior  Ct.  347;  Wolf  v.  Wilson,  28  Superior 
Ct.  511).  Should  the  principle,  however,  ratify  the  excess  of 
authority  the  principal  becomes  liable,  and  the  personal  liability 
of  the  agent  disappears  (Hopkins  v.  Everely,  150  Pa.  117). 

Mr.  Fallon,  in  his  excellent  book  on  conveyancing,  quotes  the 
three  cases  under  which  an  agent  may  be  held  personally  liable 
as  follows : 

"1.  Where  the  agent  makes  a  false  representation  of  his  au- 
thority with  intent  to  deceive. 

2.  Where,  with  knowledge  of  his  want  of  authority,  but  with- 
out intending  fraud,  assumes  to  act  as  though  he  were  fully 
authorized. 

3.  Where  he  undertakes  to  act  bona  fide,  believing  he  has  the 
authority  but  in  fact  has  none,  as  in  case  of  an  agent  acting  under 
a  forged  power  of  attorney." 

In  conclusion,  it  may  be  said,  highest  fidelity  to  client,  fair 
dealing  with  others  has  a  reward  which  should  make  such  con- 
duct attractive  aside  from  the  penalties  that  are  visited  upon 
those  guilty  of  breach  of  faith. 


CHAPTER  XIV. 
Settlements.     Title  Insurance  Companies. 

Page.  Page 

200.  Title     Insurance     Compa-  204.  Payment  of  Title  Charges 

nies 247  and    Conveyancing    Ex- 

201.  Application    for    Title    In-  penses     253 

surance   248      205.  Settlements    (Conveyance)  254 

202.  Settlement  Certificate   250       206.  Mortgage   Settlement    261 

203.  Approval  of  Form  of  In-  207.  Suggestions      in      Making 

struments     253  Settlements    263 

200.     Title  Insurance   Companies. 

As  before  stated,  in  recent  years  a  remarkable  change  has 
come  over  the  business  of  conveyancing,  especially  in  the  larger 
cities,  due  mainly  to  the  modern  tendency  of  specialization  in  all 
business.  In  the  real  estate  business  it  has  resulted  in  the 
formation  of  companies  making  a  specialty  of  searching  and 
insuring  titles,  called  title  insurance  companies.*  In  Philadelphia, 
fifty  years  ago  a  conveyancer,  besides  drawing  the  necessary 
papers,  always  made  the  title  searches,  the  correctness  of  which  he 
certified  to  by  signing  the  brief  of  title.  There  was,  however,  no 
guarantee  other  than  the  personal  integrity  and  reputation  of  the 
man  (Watson  v.  Muirhead,  57  Pa.  161).  But  in  those  days  this 
was  no  small  thing.  The  conveyancers  were  a  splendid  set  of  men, 
proud  of  their  calling  and  jealous  of  their  unblemished  reputa- 
tions. They  were  well  grounded  in  the  law  and  their  opinions 
on  real  estate  law  were  often  sought  after  as  eagerly  as  a 
lawyer's.  Indeed,  the  examinations  necessary  to  gain  admission 
to  their  conveyancers'  associations  were  considered  in  those  days 
to  be  more  difficult  than  the  lawyer's  examination  for  admission 
to  the  bar.  Forty  years  ago  saw  the  incorporation  of  the  first 
title  insurance  companyf  in  Pennsylvania,  in  fact  in  the  world. 
This  company  was  organized  by  several  members  of  the  Con- 

*See  an  interesting  address  of  Emil  Rosenberger,  president  of  the  Real 
Estate  Title  Insurance  and  Trust  Co.,  made  to  Real  Estate  Brokers'  Asso- 
ciation of  Philadelphia,  March  2,  191 1,  published  by  Real  Estate  Title  and 
Trust  Co. 

fThe  Real  Estate  Title,  Trust  and  Insurance  Co.,  Philadelphia,  Pa. 

247 


248  Conveyancing  in   Pennsylvania. 

veyancers'  Association  who  saw  the  value  of  co-operation  as 
well  as  specialization  in  the  field  of  title  searching.  They  fore- 
saw that  the  time  was  coming  when  people  would  not  be  satisfied 
with  the  guarantee  consisting  solely  of  an  individual's  integrity, 
however  spotless,  but  would  demand  some  financial  assurance. 
Accordingly,  the  new  company  issued  a  policy  of  title  insurance 
backed  by  its  capital,  guaranteeing  its  searches.  So  successful 
was  this  first  company  that  others  rapidly  followed  until  nowa- 
days most  all  the  searching  in  Philadelphia  is  done  by  these 
companies. 

The  old  time  conveyancers  have  practically  disappeared.  Few 
modern  conveyancers  bother  with  searching  title,  and  the  pro- 
fession of  conveyancing  as  once  understood  no  longer  exists. 
The  old  time  conveyancers  have  been  replaced  by  the  modern 
real  estate  brokers,  whose  special  business  it  is  to  buy  and  sell 
real  estate  for  others.  He  still  draws  agreements  and  prepares 
the  instruments  of  conveyancing,  but  leaves  the  field  of  title 
searching  to  the  title  insurance  companies,  who  do  it  more  ex- 
peditiously and  perhaps  better  than  he  could.  The  modern  real 
estate  broker  is  not  so  well  grounded  in  the  law  as  the  old  time 
conveyancer,  nor  does  he  need  to  be  for  questions  of  defect  in 
title  are  no  longer  for  him  to  decide,  but  are  determined  by  the 
experts  employed  by  the  title  companies.  All  in  all,  however,  the 
real  estate  business  has  lost  nothing  by  its  abandonment  of  title 
searching.  Rather  have  brokers  been  enabled  to  turn  their 
energies  in  other  directions  of  their  vast  field.  However  this 
may  be,  the  title  companies  are  here  to  stay,  and  it  becomes  neces- 
sary therefore  in  a  modern  book  to  dwell  briefly  upon  the  methods 
by  which  the  title  companies  carry  on  business,  and  the  way  set- 
tlements are  conducted. 

201.     Application  for  Title  Insurance. 

The  application  for  title  insurance  is  usually  made  by  the 
agent  of  the  vendee,  for  the  vendee  by  custom  in  this  State  bears 
the  costs  of  its  examination  fees.  The  application  blanks  are 
obtainable  at  any  of  the  title  companies  and  are  similar  to  the 
one  set  out  on  page  249.  The  application  is  usually  filled  up  by 
the  company's  clerk,  and  signed  by  the  applicant  or  his  agent, 
to  whom  he  issues  a  card  receipt  containing  the  number  of  the 
application  and  the  rate  to  be  charged  therefor.  The  cost  varies 
with  the  amount  of  insurance  desired.    The  minimum  rate  for  a 


Settlements.     Title  Insurance  Companies.        249 
Form  of  Application  for  Title   Insurance. 


No.     33967. 

The  undersigned  hereby   applies  to 


Philadelphia, 


THE    TITLE  AND   TRUST   COMPANY 

for  an  Insurance  in  its  usual  form,  in  the  sum  of  $ against  liens  or  defects 

in  title  affecting  the  premises   hereinafter   described. 

It  is  agreed  that  the   following  statements  are  correct  and   true  to  the   best  of  the 
applicant's  knowledge  and  belief: — 


Interest  to  be  insured. 
Name  of  Insured. 
Address  of  Insured. 


Mortgagee. 

H.  B.  BUILDING  AND  LOAN  ASSOCIA- 
TION (Owner's  Certificate  to  Oiven  John- 
son-) 


The  Company  will  not  Guarantee  Accuracy  of 

Description    unless    furnished    with    an    Of- 

ficial Survey. 

Description  of  the  lot  and  Buildings. 

North  side  of  X  Street  Ninety   feet   West   of 

Y  Street;  sixteen  feet  on  X  Street  by  Sev- 

enty-seven   feet    parallel    to    Y   Street    to   a 

three  feet  alley. 

Ward. 

50th. 

House  No. 

314  "X"  Street. 

Title  vested  or  to  be  vested  in  In- 
sured by? 


Mortgage. 


Address  of  grantor  or  mortgagor.        |    314  "X"  Street. 


Who    holds    possession,    and    under 
whom? 


Ozvner. 


Ground-rents  and  incumbrances,  de- 

cedent's    debts,     mechanics'     and 

municipal     claims    known    or    al- 

leged  to   exist — stating  which   are 

Mortgage    of    $2,000.00    to    George    H. 

Mann 

to  remain  and  which  not. 

dated  March  28,   1008  to  remain. 

Unrecorded  deeds,  agreements,  ad- 
verse claims,  and  interest  or  se- 
cret trust  known  or  rumored  to 
exist. 


None. 


Is  any  part  of  the  premises,  privy, 
yard,  &c,  used  by  any  neighbor- 
ing or  adjoining  owner?  If  so, 
what? 


No. 


If  the  applicant,  before  the  issuing  of  the  policy,  should  have  any  further  in- 
formation or  intimation  as  to  defects,  objections,  liens,  or  incumbrances  affecting  the 
premises,  the  same  will  at  once  be  fully  made  known  to  the  Company.  The  Com- 
pany  is  not  responsible   for  unpaid  gas  or  electric  light  bills. 

Where  the  owner's  title  is  insured,  and  delay  or  expense  in  obtaining  actual  pos- 
session of  the  premises  is  to  be  wholly  borne  by  the  Insured,  and  not  by  the  Com- 
pany. 

It  is  further  agreed  and  understood,  that  the  entire  charge  for  the  services  of  the 
Company,  including  the  Policy  fee,  shall  be  due  and  payable  immediately  upon  the 
presentation  and  delivery  of  the   Settlement  Certificate. 

Applicant,  Frederick    Black, 

Address,  Solicitor  H.   B.   B.   &  L.   Association. 


250  Conveyancing  in   Pennsylvania. 

property  that  has  never  been  insured  is  $26.00,  which  includes 
the  examination  fee  of  $21  and  minimum  premium  of  $5  for  a 
$2,000  policy  of  title  insurance.  The  premium  for  additional 
insurance  is  25  cents  per  hundred  for  each  additional  hundred 
dollars.  Once  a  property  has  been  insured  the  company  will 
offer  a  reduced  rate  if  asked  to  insure  it  again,  depending  on  the 
length  of  time  since  the  last  insurance,  which  varies  from  $13.50 
up  to  $21.00.  The  title  companies  will  also  make  guaranteed, 
general  and  partial  searches,  and  the  charges  therefor  vary  ac- 
cording to  the  period  covered  and  kind  of  search  made.  Rates 
will  be  quoted  by  any  of  the  title  companies  on  application.  Of 
course,  such  a  search  is  not  guaranteed  by  a  title  policy. 

202.     Settlement  Certificate. 

Upon  receipt  of  the  application  the  company  makes  the 
searches  and  prepares  its  brief  of  title  and  notes  upon  a  paper, 
all  of  the  encumbrances,  liens  and  objections  to  the  title.  This 
paper  is  known  as  the  settlement  certificate  and  is  sent  to  the 
applicant  for  the  title  insurance.  The  form  of  a  settlement  cer- 
tificate is  as  follows : 

Settlement  Certificate. 

The  Title  and  Trust  Company. 
No.  33967. 

Philadelphia,  August  20,  1912. 

Mortgage,  $1,200,  secured  on  premises  north  side  of  X  Street, 
90  feet  west  of  Y  Street,  16  feet  on  X  Street  x  77  feet  parallel  to 
Y  Street  to  three  feet  alley  about  to  be  made  by  Owen  Johnson 
to  H.  B.  B.  &  L.  Ass'n,  No.  314  X  Street. 
O.  C  to  Owen  Johnson. 

The  premises  are  subject  to  the  following  encumbrances  and 
claims,  which  will  be  excepted  in  the  policy  unless  removed : 


Ground  rents. 

None. 

Mortgages. 

$2,000  ex.  3  yrs.  5  4-10%  Owen  Johnson  to 

George  H.  Mann,  dated  March  28,  1908. 

Rec.  March  30,  1908,  W.  S.  V.  1332,  P. 

197. 

Registered  taxes. 

None. 

(Continued  on  next  page.) 


Settlements.     Title  Insurance  Companies.        251 


Settlement  Certificate. —  ( Continued. ) 


Current  taxes. 

Water  rents. 
Mechanics'  and 
Municipal  claims. 

Judgments. 
Objections. 


For  1912  are  not  paid.    Assessment  $4,500; 

tax,  $67.50. 
Due  for  1912. 
None,  except  possible  mechanics'  claims  for 

new  work  done  or  ordered  to  be  done  and 

alterations. 
None. 

Title  papers  to  be  produced  and  parties  identified. 
Subject  to  the  terms  and  conditions  of  any  wire 

corded  lease. 
Accuracy  of  description  and  dimensions. 
Mortgage,    bond   and   warrant    of   attorney   from 

Owen  Johnson  to   Insured  to  be  produced  and 

mortgage  to  be  recorded. 
Terms  of  mortgage  to  be  written  in  application  and 

made  a  part  thereof. 
Wires  attached  to  building. 
Company  inspector  reports  metal  awning  of   this 

premises  appears  to  overhang  adjoining  premises 

to  southeast. 
No  gate  into  alley. 

Is  this  transaction  within  the  bankruptcy  or  in- 
solvency acts? 

If  any  instrument  in  this  transaction  is  made  by 
or  to  a  bank,  banking  institution  or  trust  com- 
pany, proof  must  be  furnished  that  the  notary 
public  taking  the  acknowledgment  is  not  a  stock- 
holder, director  or  officer  in  said  bank,  banking  in- 
stitution or  trust  company,  and  the  notary  must 
certify  that  fact  in  his  acknowledgment. 


In  order  to  protect  the  insured  from  loss  by  reason  of  defects  arising 
between  this  date  and  the  final  settlement  it  is  recommended  that  the  con- 
sideration money  be  deposited  with  the  company,  and,  if  the  amount  be 
sufficient  the  company  will  then  pay  off  the  encumbrances.  And  when  the 
transaction  is  settled  and  the  papers  recorded,  which  recording  must  be 
done  by  the  company,  a  policy  of  insurance  for  $2000  will  be  issued  in 
conformity  with  Application  No.  33967. 

From  this  certificate  the  grantee  may  see  at  a  glance  what 
the  defects,  if  any,  are  in  the  title  as  well  as  liens  and  en- 
cumbrances against  it.  These  objections,  as  they  are  termed, 
may  then  be  taken  up  by  the  grantee  or  his  agent  with  the 
grantor   and    arrangements   made    for    their    removal.      If    not 


252  Conveyancing   in   Pennsylvania. 

removed,  these  objections  will  appear  in  the  policy  to  be  is- 
sued by  the  company  as  exceptions  which  are  not  insured 
against.  Take  the  form  of  settlement  certificate  on  page  250,. 
which  was  issued  upon  the  application  of  an  intending  mort- 
gagee, as  an  example.  It  discloses,  first,  that  there  are  no  ground 
rents  against  the  property  about  to  be  mortgaged.  There  is, 
however,  a  mortgage  existing  against  the  property  in  the  sum 
of  $2,000  for  three  years  at  five  and  four-tenths  per  cent,  interest. 
The  names  of  the  mortgagor  and  mortgagee  follow,  together  with 
the  date  and  page  of  mortgage  book  in  which  it  is  recorded. 
Next  we  see  there  are  no  registered  taxes.  But  the  current 
taxes  are  not  paid  nor  is  the  water  rent.  While  no  mechanic's 
liens  are  cited  as  having  been  recorded,  notice  is  given  that 
alterations  are  being  made  on  the  property  which  might  possibly 
result  in  mechanic's  lien.  No  judgment  liens  exist.  Finally 
follows  the  printed  stereotype  objections,  as  well  as  others  which 
are  self  explanatory.  With  this  settlement  certificate  before  him 
the  broker  can  at  a  glance  determine  what  serious  defects  or 
encumbrances  are  against  the  owner's  title,  and  he  sets  about 
to  either  remove  them  or  satisfy  the  mortgagee  in  some  other 
way.  If  the  mortgage  about  to  be  insured  is  to  be  a  first  mort- 
gage then  arrangements  must  be  made  to  have  the  one  disclosed 
by  the  certificate  removed.  The  broker  must  ascertain  if  its 
term  for  three  years  has  expired  or  if  the  mortgagee  is  willing 
to  receive  back  his  principal.  If,  however,  the  new  mortgage  is 
to  be  a  second  mortgage,  then  nothing  need  be  done,  since  the 
settlement  certificate  only  shows  one  mortgage  against  the  prop- 
erty. The  taxes  and  water  rents  can  be  paid  at  the  settlement. 
With  regard  to  possible  mechanics'  liens:  If  the  work  of  altera- 
tion has  been  completed  and  paid  for,  the  contractor's  release 
of  liens  should  be  demanded,  or  if  a  waiver  of  liens  has  been 
filed  this  should  be  verified.  A  very  usual  method  to  pass  this 
possible  liability  is  for  the  mortgagee  to  demand  an  extra  bond 
of  indemnity.  The  title  company  will  usually  for  an  extra  pre- 
mium insure  against  this  possible  liability,  making  its  own  terms 
with  .the  mortgagor.  The  objections  in  italics  can  be  removed  by 
compliance  with  the  terms  of  the  title  company.  The  first 
presents  no  difficulties.  The  second  can  be  removed  by  affidavit 
of  the  owner  that  no  lease  exists  or  that  he  occupies  the  prem- 
ises himself.  The  third  by  furnishing  an  official  survey,  although 
this  is  a  mere  minor  objection  and  can  safely  be  allowed  to 


Settlements.   Title  Insurance  Companies.  253 

remain.  It  is  usually  removed  by  the  title  companies  as  far  as 
the  mortgagee  is  concerned.  The  remaining  objections  are  mere 
notices  to  the  mortgagee  and  while  not  of  vital  importance  serve 
to  show  the  exhaustive  nature  of  the  company's  examination. 
All  of  these  objections  which  are  to  be  removed  may  be  taken 
up  in  advance  and  are  usually  disposed  of  at  the  time  of  settle- 
ment as  hereinafter  set  forth  (See  Par.  205). 

203.  Approval  of  Form  of  Instruments. 

The  instruments  of  conveyancing,  deed,  mortgage  or  as  the 
case  may  be,  are  submitted  before  execution,  to  the  title  com- 
pany for  its  approval  as  to  form.  If  in  proper  form  they  are 
returned  markeo)  O.  K.  as  to  form.  If  not,  they  are  returned 
with  the  objections  noted  on  the  outside.  They  are  then  to  be 
corrected  according  to  objections.  They  should  then  be  kept 
until  ready  for  settlement.  A  deed  can  be  executed  at  settle- 
ment; a  mortgage  should,  however,  be  executed  and  returned  to 
the  company,  so  that  it  may  record  the  mortgage  two  days  before 
before  settlement  for  reasons  explained  heretofore  (Par.  126). 

204.  Payment  of  Title  Charges  and  Conveyancing  Expenses. 

In  Pennsylvania  the  expense  of  title  searching  must  be  paid  by 
the  purchaser,  for  our  recording  system  puts  him  on  notice  of  all 
recorded  liens  and  encumbrances  (Woods  v.  Farmere,  7  Watts 
382;  Lance  v.  Gorman,  136  Pa.  209).  "It  is  not  necessary  to 
tender  a  whole  chain  of  title  when  the  vendor  tenders  the  deed. 
It  is  the  duty  of  the  purchaser  to  examine  the  title  for  himself. 
The  purchaser  is  not  bound  to  accept  a  doubtful  title,  but  it  is 
his  business  to  show  that  it  is  doubtful  or  positively  bad  (Coulter, 
J.,  in  Espy  v.  Anderson,  14  Pa.  312).  In  some  jurisdictions, 
e.  g.,  England,  the  vendor  must  furnish  the  purchaser  with  an 
abstract  of  title,  but  this  is  not  the  law  in  Pennsylvania  (Espy  v. 
Anderson,  supra ;  Whittaker  v.  Williams,  7  Leg.  &  Ins.  Rep.  14 ; 
Negley  v.  Lindsay,  67  Pa.  229).  If  the  purchaser  here  wants  an 
abstract  of  title  he  must  make  it  himself  or  pay  some  one  out  of 
his  own  pocket  to  do  it  for  him.  But  after  the  defects  are  dis- 
closed, or  any  deeds,  releases,  etc.,  are  found  to  be  missing  or  un- 
recorded it  is  incumbent  upon  the  vendor  at  his  own  expense  to 
supply  the  lost  or  broken  links  in  the  chain  of  title  (Frowert's 
Estate,  12  Phila.  148;  Negley  v.  Lindsay,  supra). 


254  Conveyancing  in  Pennsylvania. 

As  to  the  payment  of  conveyancing  costs  or  charges  for  pre- 
paring and  drawing  the  instruments,  the  practice  is  not  uniform 
throughout  the  State  and  depends  on  local  custom.  In  Phila- 
delphia the  burden  of  paying  these  charges  is  also  on  the  pur- 
chaser (Frowert's  Estate,  12  Phila.  148;  Callaghan  v.  McCredy, 
48  Pa.  464).  In  many  other  counties,  perhaps  in  most,  the  ex- 
pense of  preparing  the  deeds,  etc.,  is  on  the  vendor,  a  custom 
arising  probably  from  the  fact  that  if  the  purchaser  fails  to  con- 
summate his  purchase  it  is  the  duty  of  the  vendor  to  tender  an 
executed  deed  before  bringing  suit  (Kester  v.  Rockel,  2  W.  &  S. 
369.  But  see  Tiernan  v.  Roland,  15  Pa.  440;  Eberz  v.  Heister, 
12  Pa.  Super.  388). 

In  the  case  of  mortgages  and  assignments  thereof,  the  rule  is 
uniform  that  the  borrower,  or  assignor  of  the  mortgage  must  pay 
all  charges,  whether  for  title  searching  or  conveyancing  expenses, 
unless  an  express  agreement  is  made  to  the  contrary.  The  charge 
for  making  and  acknowledging  sheriff's  deeds  is  to  be  paid  by  the 
purchaser  (Act  of  July  11,:  1901,  P.  L.  663,  Sec.  1). 

205.     Settlements.     (Conveyance.) 

You  are  now  ready  for  settlement.  A  settlement  need  not 
necessarily  be  made  at  the  company's  offices,  though  it  is  better 
to  do  so  and  in  Philadelphia  usually  is.  Fix  a  time  for  settle- 
ment convenient  to  the  parties  and  make  an  appointment  at  the 
title  company  for  that  hour.  The  settlement  is  conducted  by  an 
employee  of  that  company,  known  as  settlement  clerk,  and  is 
stated  according  to  the  form  here  shown.  Suppose  the  facts  of 
the  transaction  are  as  follows : 

William  Simpson  sold  his  property,  322  Logan  Street,  to  Louis 
Brown,  for  a  total  consideration  of  $3,000.  The  premises  being 
subject  to  a  mortgage  of  $1,500  which,  according  to  the  agree- 
ment, Brown  is  to  take  under  and  subject  to.  Brown  has  paid 
$100  down  on  account.  The  mortgage  interest  at  5  4-10%  is 
due  semi-annually  on  the  first  days  of  June  and  December. 
Taxes  of  191 2,  which  are  $42.00,  appear  from  settlement  certifi- 
cate as  not  paid.  The  water  rent  for  1912  has  been  paid  and 
amounts  to  $16.00.  The  purchaser  has  borrowed  from  the 
H.  B.  Building  and  Loan  Association  $500  on  a  second  mortgage. 
There  is  a  perpetual  fire  insurance  policy  of  $1,500,  which  the 
vendor  agrees  to  sell  at  its  cancellation  value.  The  settlement  is 
stated  as  of  August  1,  1912.  The  following  form  of  settlement 
sheet  shows  how  this  settlement  would  be  stated : 


Settlements.     Title  Insurance  Companies. 
Statement  of  Settlement.* 


255 


No.  306415. 

Philadelphia,  Pa.,  August  1,  1912. 
Settlement  made  by  William  Simpson  with  Louis  Brown,   for 
purchase  of  premises  No.  322  Logan  Street,  Philadelphia: 


Dr. 

Consideration,  subject  to  first  mortgage 
Policy  No.    Perpetual  $30  less  10% 
Policy  No.                     $     less      % 

Taxes  of  current  year,  $ 

$1,500 
27 

00 
00 

Water  rent                    $    from  August  1, 

19 1 2 
House  rent 

6 

67 

Acknowledgment  of  deed 

75 

$h534 

Cr. 

42 

Paid  on  account 

Taxes  of  current  year,  $        Adjustment  7 

$100 

00 

months 
Water  rent         "         $ 

24 

50 

Mortgage — principal 

Interest  on  mortgage,  from  June  1,  1912, 

to  date 
Accrued  ground  rent 
House  rent 

13 

50 

138 

00 

Balance  due  grantor 

$1,306 

42 

This  company  does  not  assume  liability  for  payment  of  current 
or  delinquent  gas  bills. 


Settlement  with  Gran  :or. 

Fund  due  grantor  in  set- 
tlement $1,396  42 


Mort- 
gage 


Settlement  with  Grantor. 

Fund  due  grant- 
or $1,396  42 
'Title 

charges     21  00 
Record- 
ing 6  50 


Title  In 
su ranee  ■< 
Chatges 


*This  is  the  printed  form  used  by  the  Land  Title  Company ;  the  words  in 
italics  are  filled  in  as  the  terms  of  settlement  require. 


256 


Conveyancing  in   Pennsylvania. 


Taxes 

and 

Water 

Rents 


Robert    Smith,    commis- 
sions 


60  00 


Balance      of     settlement 
payable  to  grantor  $1,336  42 


Taxes      f   Taxes, 

and       J          jg12 
Water    ^           y 
Rents      1    

$. 

42 

00 

Fred'k  Black,  so- 

licitor 

15 

00 

Rob't  Smith,  con- 

veyancing 

15 

00 

$1,495  92 
Credit   deposit  by  second 
mortgagee  5°°  00 


Fund    necessary    to     com- 
plete settlement  $995  92 


The  above  settlement  examined  and  approved,  in  consideration 
of  which  The  Blank  Title  and  Trust  Company  is  directed  and 
authorized  to  make  distribution  and  payments  in  accordance 
therewith. 


Approved, 

William  Simpson, 
Grantor. 


Approved, 


Louis  Brown, 

Grantee. 


This  settlement  statement  it  will  be  seen,  is  divided  into 
two  parts,  the  first  part  under  Dr.  represents  everything 
charged  against  the  purchaser,  i.  e.,  everything  he  must 
pay.  The  other  part,  under  the  letters  Cr.,  represents  everything 
credited  to  him  or  for  which  he  receives  an  allowance.  Taking 
up  the  entries  in  order,  we  find  the  first  item  is  consideration. 
Where  property  is  sold  subject  to  a  mortgage,  the  usual  method 
of  stating  the  consideration  is  to  deduct  the  amount  of  mort- 
gage and  to  state  the  net  consideration,  which  in  this  case  is 
$1,500.  This  is  the  same  as  debiting  the  purchaser  with  the  gross 
consideration  of  $3,000  under  the  Dr.  and  crediting  him  with  the 
$1,500  mortgage  he  takes  subject  to  under  the  Cr.  The  next  item 
is  fire  insurance  policy.  The  policy  here  is  a  perpetual  one  of 
$1,500,  the  premium  $30.00  and  the  cancellation  value  iofo,  i.  e., 
$3.00  less,  or  $27.00  (See  Par.  45  d,  also  as  to  term  policies). 
Since  the  purchaser  must  pay  this  cancellation  value  in  order 
to  get  the  fire  policy  it  is  charged  against  him  under  Dr. 

The  next  item  is  taxes.  Turning  to  our  settlement  certificate 
we  would  find  that  the  taxes  for  191 2  have  not  been  paid  by  the 


Settlements.     Title  Insurance  Companies.        257 

grantor,  and  they  cannot  be  charged  against  the  purchaser  or 
grantee.  As  to  the  next  item,  the  water  rent,  the  situation 
is  different.  This  appears  to  have  been  paid  for  the  year  of  1912 
by  the  grantor,  but  since  he  surrenders  possession  to  the  pur- 
chaser on  the  first  of  August  he  has  had  only  seven  months'  use 
of  the  water,  for  which  he  has  paid  twelve  months'  rent.  He 
ought,  therefor,  be  re-imbursed  by  the  purchaser  for  five  months' 
rent.  Therefore,  the  five  months'  rent  of  five-twelfths  of  $16.00 
equals  $6.67  which  must  be  paid  by  the  purchaser,  is  charged 
against  him.  House  rent,  if  any,  by  custom  in  Philadelphia,  is 
usually  also  adjusted  under  the  same  principles.  This  leaves 
acknowledgment  of  deed,  which  the  purchaser  pays  and  it  is, 
therefore,  charged  against  him. 

Below  the  Cr.  'appears  all  items  for  which  the  purchaser  or 
grantee  receives  credit.  Having  already  paid  $100.00  on  account 
of  the  purchase  price  the  grantee  is,  of  course,  to  be  credited  with 
this  amount.  Under  the  next  item,  taxes,  he  is  entitled  to  addi- 
tional credit  for  the  seven  months  of  the  year  occupied  by  the 
grantor.  In  other  words,  since  the  taxes  for  the  current  year 
are  unpaid,  they  must  be  paid  by  the  grantee,  who  pays  them 
for  the  whole  year.  The  grantor  having,  however,  used  and 
occupied  the  premises  seven  months  of  the  year  must  re- 
imburse the  grantee  seven  month's  taxes,  i.  e.,  seven-twelfths  of 
$42.00  equal  $24.50.  This  he  does  by  crediting  the  grantee  with 
$24.50.  The  rule,  therefore,  to  be  remembered  is  that  where  the 
water  rent  or  taxes  for  the  current  year  have  been  paid  by  the 
grantor  before  settlement,  the  grantee  must  be  charged  for  the 
proportionate  value  of  the  balance  of  the  year.  Where,  however, 
they  are  not  paid  before  settlement  the  grantee  is  credited  with 
the  proportionate  value  from  the  beginning  of  the  year  to  the 
settlement.  In  this  settlement  we  have  an  illustration  of  each,  the 
water  rent  was  paid  before  settlement,  hence  the  grantee  was 
charged  with  five  months,  the  balance  of  the  year.  The  taxes 
were  not  paid,  hence  the  grantee  is  credited  with  seven  months' 
share,  representing  the  period  from  the  beginning  of  the  year  to 
date  of  settlement. 

The  next  item  is  mortgage  principal.  This  means  the  mort- 
gage principal  which  the  property  is  bought  subject  to.  If  gross 
consideration,  to  wit,  $3,000,  had  been  set  forth  under  the  Dr. 
we  would  have  had  to  credit  here  $1,500;  here  also  would  be 
credited  the  amount  of  a  purchase  money  mortgage  had  one  been 


258  Conveyancing  in   Pennsylvania. 

given,  but  since  no  purchase  money  mortgage  is  here  given  and 
since  we  have  only  stated  the  net  consideration,  we  pass  this  item. 

Interest  on  mortgage  is  the  next  item.  This  has  reference  to 
the  mortgage  which  the  property  is  bought  subject  to.  Our 
example  has  made  the  interest  payable  on  this  mortgage  on  June 
1st  and  December  1st.  The  interest  is  always  payable  at  the  end 
of  the  six  months'  period.  Therefore,  having  been  paid  on  June 
1st,  191 2,  for  the  six  months  ending  that  time,  it  does  not  become 
payable  again  until  December  1st.  At  this  date  the  mortgagee 
will  collect  from  the  grantee  six  months'  interest  from  June  1st, 
1912.  The  grantor,  however,  having  had  use  of  the  premises 
from  June  1st,  191 2,  to  August  1st  should  pay  two  months'  in- 
terest. This  he  pays  to  the  grantee  by  crediting  him  with  an 
amount  equal  to  two  months'  interest,  two-twelfths  of  $81.00 
equals  $13.50.  The  rule  here  is  simple.  Credit  the  grantee  with 
an  amount  equivalent  to  interest  from  date  of  last  interest  pay- 
ment to  date  of  settlement. 

This  ends  the  statement  of  settlement  of  accounts  between  the 
grantor  and  grantee,  as  far  as  their  relations  with  each  other  are 
concerned.  By  adding  up  the  debits  and  deducting  total  of 
credits  we  find  that  the  grantor  is  entitled  to  receive  from  the 
grantee  a  total  of  $1,396.42. 

The  title  company  now  states  a  settlement  with  the  grantor 
and  grantee  separately.  The  settlement  with  grantor  at  the  lower 
left  hand  corner  is  simple.  The  first  item  is  fund  due  grantor. 
This  item  is  carried  over  from  the  balance  due  grantor  as  found 
above,  to  wit,  $1,396.42.  From  this  is  deducted  anything  charge- 
able against  the  grantor.  In  this  case  only  one  thing  appears,  the 
commission  due  Robert  Smith,  the  real  estate  broker,  $60.00, 
which  is  deducted,  leaving  the  net  balance  due  grantor  of  $1,- 
336.42,  which  amount  the  title  company  pays  over  to  the  grantor. 

The  settlement  with  grantee  is  in  this  case  a  little  more  com- 
plicated. We  start  with  the  same  sum,  to  wit,  $1,396.42  fund  due 
grantor  which  the  grantee  must  pay  the  grantor.  In  addi- 
tion to  this  he  must  pay  the  next  item,  to  wit,  the  company's 
title  insurance  charges,  $21.00;  the  recording  charges,  $6.50;  the 
taxes  of  1912  must  also  be  paid,  $42.00.  In  addition,  he  must 
pay  the  conveyancing  charges,  here  $15.00,  as  well  as  the  build- 
ing association  solicitor's  charges,  making  his  total  expense,  in- 
cluding everything,  $1,495.92.  The  $500  borrowed  on  a  second 
mortgage    from   the   building   association   having   already   been 


Settlements.     Title  Insurance  Companies.        259 

deposited  with  the  company,  is  deducted,  leaving  the  net  amount 
necessary  to  complete  settlement  $995.92,  which  the  grantee  must 
pay  into  the  company.  Sometimes  the  real  estate  broker  agrees 
with  the  grantor  to  do  all  the  conveyancing,  place  the  mortgage 
and  pay  the  title  charges  for  a  lump  sum,  in  which  case  these 
charges  are  not  itemized  but  all  lumped  in  one  amount. 

In  pursuance  to  this  settlement  as  here  stated,  the  title  com- 
pany pays  out  to  the  grantor  $1,336.42;  to  Robert  Smith,  $75.00; 
to  Fred  Black,  $15.00;  to  the  city,  $42.00,  taxes;  to  the  recorder 
of  deeds,  $6.50,  recording  charges,  and  retains  its  own  charges. 

The  same  settlement  stated  below  and  on  page  260  is  a  little  dif- 
ferent in  form,  being  that  used  by  another  Title  Company,  which 
the  reader  will  probably  have  no  dimculty  in  understanding  with- 
out a  detailed  explanation.  Observe  that  different  settlement 
sheets  are  used  for  the  purchaser  and  seller. 

Another  Form  of  a  Settlement  Statement.* 

Purchasers'  Statement. 
The  Title  Insurance  and  Trust  Company  of  Philadelphia. 
Application  306415.  Premises  No.  322  Logan  Street. 

William  Simpson  to  Louis  Brown. 
Settlement  made  as  follows  on  August  1,  1912: 
Purchase  Money  subject  to  first  mortgage  ($1,500) 
Taxes 

Water  rent  from  Aug.  1,  1012 
Rent 
Fire  insurance,  $1,500 ;  premium,  $30,  less  10% 
Acknowledgment 


Paid  on  account 

Taxes,  adjustment 

Water  rent 
Interest  on  mortgage  from  June  i,  1012 
Rent 


Net  purchase  money 

*In  this  form  (Real  Estate  Title  Co.'s  form)  the  settlement  made  with 
the  purchaser  and  seller  are  stated  in  separate  sheets.  See  next  page  for 
Seller's  Statement. 


$1,500) 

$1,500 

00 

6 

67 

10% 

27 

00 

75 

$100 

00 

$i,534 

42 

24 

50 

13 

50 

138 

00 

$1,396 

42 

260 


Conveyancing   in   Pennsylvania. 


Taxes,  1012 

Water  rent 

Fire  insurance 

Title  company  charges 

Recording 

Frederick  Black,  solicitor 

Robt.  Smith,  conveyancing 

Total  due  company  by  purchaser 
Deposited  with  company  by  purchaser 
Deposited  with  company  by  mortgagee 

Total  deposits 

Seller's  Statement. 

The  Insurance  and  Trust  Company  of  Philadelphia. 

Application  306415.  Premises  A'o.  322  Logan  Street. 

William  Simpson  to  Louis  Brown. 

Settlement  made  as  follows  on  August  1,  1012: 


$42 

00 

• 

' 

21 

00 

6 

50 

15 

00 

15 

00 

99 

50 

$i,495 

92 

$995  92 

500 

00 

$i,495 

92 

Purchase  money  subject  to  first  mortgage  ($1,500) 

Taxes 

Water  rent  from  August  1,  10 12 

Rent 
Fire  insurance,  $1,500 ;  premium,  $30,  less  10% 

Acknowledgment 


Paid  on  account 

Taxes,  adjustment 

Water  rent  penalty 

Interest  on  mortgage  from  June  1,  1012 

Rent 


#700 

24 
13 


00 

50 

50 


Net  purchase  money  deposited  with  company 
Paid  out  as  follows : 
Mortgage  and  sat.  fee,  No.        Page 

Interest  to  @      % 

Robert  Smith,  commissions,  2%  $60  Oi 


$1,500 
6 

27 


00 
67 

00 

75 


$r,534 


138 


$1,396 


00 


Settlements.     Title  Insurance  Companies.        261 
Recording 


Balance  due  seller 


60 


$1,33^  42 


00 


206.     Mortgage  Settlement. 

The  statement  of  a  mortgage  settlement  is  much  simpler  than 
the  others.  Suppose  Owen  Johnson,  the  owner  of  premises  1634 
Y  Street,  desires  to  borrow  $1,200  on  a  second  mortgage  from  the 
H.  B.  Building  and  Loan  Association,  and  that  the  solicitor  of 
that  building  association  made  application  for  title  insurance 
and  received  the  settlement  certificate  set  out  on  page  250;  the 
settlement  would  be  stated  as  appears  in  form,  below,  under 
date  of  September  1,  191 2.  This  settlement  is  self-explanatory 
and  easily  understood.  The  fund  is  deposited  with  the  company 
by  the  mortgagee  and  the  balance,  after  deducting  expenses  and 
charges  is  paid  over  to  mortgagor.  The  same  principle  governs 
the  settlement  shown  on  page  262,  though  here  a  larger  mortgage 
has  been  made  and  proceeds  used  to  pay  off  a  smaller  one. 

Mortgage  Settlement. 

No.  33967  Philadelphia,  Pa.,  September  1,  1912. 

Settlement  made  by  Owen  Johnson  with  H.  B.  Building  and 
Loan  Association  for  mortgage,  $1,200,  premises  No.  314  "X" 
Street,  Philadelphia. 


Dr. 
Deposited  by  mortgagee 
Additional  deposit  by  mortgagor 

Cr. 
Taxes 
Water  rent 

Mortgage — Mortgage  Book 
No.  Page 

Ground  rent — Deed  Book  No. 

Page 
Company  charges,  $  Record- 

ing, $  Transfer  $ 

Judgment,   C.    P.,   No.  Term, 

No.  (  ) 


$1,200 


$67 
16 


00 


$1,200 


00 


262 


Conveyancing  in   Pennsylvania. 


Fire  insurance,  10  years 

6 

60 

1 

1  , 

Mechanics?    Claim,  C.  P.,  No.         Term, 

Municipal  ) 

No.           (                       ) 

H.  B.  Building  and  Loan  Association,  back 

dues,  etc. 

13 

50 

William  Blank,  solicitor,  conveyancing,  etc. 

25 

00 

Title  company  charges 

21 

00 

Recording 

4 

00 

153 

60 

Balance  due  mortgagor 

$1,046 

40 

Settled  as  above  in  consideration  of  which 

The  Title  and  Trust  Company  is  directed  and  authorized  to  make 
payment  of  the  claims  and  charges  above  set  forth,  all  of  which 
are  hereby  approved. 


Another  Form  of  Mortgage  Settlement. 

Mortgage  Settlement. 

The  Title  Insurance  and  Trust  Company  of  Philadelphia. 

Mortgage,  $2,000.  Application  No.  312181. 

William  Flanagan  to  Otto  Schmidt. 
Premises  No.  3316  "A"  Street.     Settled  Sept.  1,  igi2. 
Deposited  with  company  by  mortgagee 

Total  deposited 
Paid  out  as  follows: 

Mortgage  and  sat.  fee 

Interest,  June   1,   1912,  to  Sept.   1, 

1012,  5  4-10% 
Second  mortgage  and  sat.  fee 
Interest  to 

% 
Taxes 
Water  rent 
Fire  insurance,  $2,000;  prem.,  $6 


$2,000 

00 

$2,000 

00 

$1,200 

50 

16 

20 

60 

00 

16 

00 

6 

00 

■ 

Settlements.    Title  Insurance  Companies.         263 


Judgment,  C.  P.  4,  March  Term,  1911, 
No.  321,  to  satisfy 

Title  company  charges 

Recording 

A.  A.  Turner,  commissions  and  con- 
vey. 


Held 


Balance  due  mortgagor 


IOI 

50 

21 

00 

3 

75 

35 

00 

: 

i,459 

95 

$539 

05 

207.     Suggestions  in  Making  Settlements. 

(1)  In  ordering  title  insurance  always  take  the  old  deed  of  the 
property  about  to  be  conveyed  with  you  to  the  application  clerk 
in  order  that  he  may  get  the  description  accurately. 

(2)  If  a  mortgage  is  to  be  taken  out  by  the  purchaser  at  the 
same  time  that  he  gets  title,  order  the  title  insurance  in  the  name 
of  the  mortgagee.  The  policy  will  issue  to  him  and  the  company 
will  issue  to  the  owner  an  owner's  certificate  which  will  give  the 
owner  a  right  to  the  new  policy  in  his  own  name  upon  surrender 
of  the  mortgagee's  policy  when  the  mortgage  is  paid  off. 

(3)  Before  you  fix  a  time  for  settlement  make  a  list  of  the  ob- 
jections appearing  on  the  settlement  certificate  which  you  insist 
on  having  removed.  Communicate  with  the  grantor  or  his  repre- 
sentative and  ascertain  his  ability  to  have  them  removed. 

(4)  Always  have  the  grantor  bring  to  the  settlement  his  cur- 
rent tax  and  water  rent  receipts,  if  they  have  been  paid,  in  order 
that  they  may  be  removed  from  the  settlement  certificate  should 
they  appear  as  unpaid  thereon. 

(5)  Where  the  grantee  takes  subject  to  a  mortgage  see  that 
the  grantor  produces  the  interest  receipt  of  the  last  interest  pay- 
ment. 

(6)  Always  have  grantee  bring  either  cash  or  certified  check 
in  order  that  there  be  no  delay  in  paying  out  the  funds. 

(7)  If  representing  a  mortgagee  or  grantee  and  you  cannot 
attend  settlement  deposit  the  money  with  the  title  company, 
together  with  a  letter  of  instruction  setting  forth  in  detail  what 
objections  you  insist  on  having  removed  and  such  other  condi- 
tions as  you  desire  to  impose.     The  parties  to  the  transaction, 


264  Conveyancing   in   Pennsylvania. 

especially  the  grantor,  ought  always  be  present  as  well  as  properly 
identified  so  that  possible  imposition  may  be  avoided. 

(8)  See  that  the  deed  or  other  instrument  is  properly  executed 
and  dated.  An  assignment  of  mortgage  requires  two  subscrib- 
ing witnesses. 

(9)  Outside  of  Philadelphia,  where  the  local  custom  is  other- 
wise and  unless  the  agreement  of  sale  provides  otherwise,  taxes 
levied  prior  to  the  sale  are  not  apportioned,  but  are  an  encum- 
brance which  the  grantor  is  obliged  to  remove  (See  Par.  50, 
Suggestion  3).  Rent  likewise  paid  in  advance  belongs  to  grantor 
before  settlement,  except  in  Philadelphia  by  custom  and  except 
where  the  agreement  of  sale  provides  that  it  should  be  appor- 
tioned to  the  day  of  settlement  (Par.  50,  Suggestion  3). 

(10)  If  the  fire  insurance  policy  is  to  be  assigned,  see  that  it 
is  sent  to  the  insurance  company  immediately  after  settlement, 
so  that  the  transfer  to  the  new  owner  may  be  approved  by  the 
company  without  delay.  If  it  is  to  be  assigned  to  a  mortgagee 
don't  forget  to  order  a  mortgagee  clause  to  be  attached. 

(11)  If  the  house  is  occupied  by  the  owner,  see  that  the  keys 
are  turned  over  at  settlement.  If  not  occupied  by  owner,  see  that 
the  lease  of  tenant  is  assigned.  Demand  either  a  lease  of  the  ten- 
ant or  possession  for  a  tenant  without  a  lease  is  a  prolific  source 
of  trouble  and  litigation. 

(12)  Where  a  mortgage  encumbrance  is  to  be  paid  off  at  set- 
tlement be  sure  to  notify  the  mortgagee  to  send  or  have  at  the 
settlement  an  itemized  statement  of  the  principal  and  accrued 
interest  which  he  demands  to  satisfy  the  mortgage.  This  will 
save  much  delay  and  a  possible  postponement  of  the  settlement. 

(13)  In  arranging  for  a  mortgage  settlement  where  only  a 
mortgage  is  made  and  title  is  not  to  pass,  have  the  mortgage 
properly  executed  and  in  the  possession  of  the  title  company  at 
least  two  days  before  settlement,  so  that  it  may  be  recorded  and 
the  search  brought  down  to  the  day  of  settlement,  to  disclose  any 
liens  that  may  have  crept  in  just  before  or  at  the  time  the  mort- 
gage is  recorded  (See  Par.  126). 

If  settlement  is  not  made  through  a  title  company,  the  con- 
veyancer should  take  the  same  precaution.  When,  however,  the 
mortgage  is  made  at  the  same  time  that  title  passes  this  need 
not  be  done. 


Settlements.    Title  Insurance  Companies.        265 

(14)  When  taking  title  to  property  from  a  guardian,  trustee, 
administrator  or  executor  selling  by  direction  of  the  orphans' 
court,  see  that  a  certified  copy  of  the  decree  authorizing  the  sale  is 
produced  and  that  security  has  been  properly  entered  in  accord- 
ance with  the  terms  of  the  decree. 


CHAPTER  XV. 

Forms. 

Acknowledgments. 

208.  Acknowledgment  by  Individual  (Uusual  Form)   268 

209.  Acknowledgment  by  Executor,  Administrator  or  Trustee   ...  269 

210.  Acknowledgment  by  Virtue  of  Letter  of  Power  of  Attorney  .  269 

211.  Acknowledgment  by  Corporation   269 

Affidavits. 

212.  Affidavit    (General  Form)    '. 270 

213.  Affidavit  of  Probate  of  Deed  Not  Acknowledged  270 

214.  Affidavit  of  Probate  of  a  Deed  Not  Acknowledged,  Where  a 

Witness  is  Deceased  or  Absent  271 

215.  Affidavit  to  Remove  Objections  From  a  Settlement  Certificate  271 

Agreements. 

216.  Agreement  of  Sale  of  Real  Estate  272 

217.  Agreement  of  Sale  by  a  Builder  272 

218.  Agreement  of  Exchange  of  Real  Estate 274 

219.  Agreement  to  Extend  Mortgage  276 

Assignments. 

220.  Assignment  of  Ground  Rent 277 

221.  Assignment  of  Lease 277 

222.  Assignment  of  Right  to  Purchase  Money  Mortgage  278 

223.  Assignment  of  Mortgage  278 

224.  Certificate  of  No  Set-off  278 


225. 


Declaration  of  Trust  278 


Deeds. 

226.  Deed  in  Fee  by  Individual  (Usual  Form)   280 

227.  Deed  in  Fee  by  Individual  (Short  Form  under  Act  of  1909)  •  •  280 

228.  Deed  by  Corporation  280 

229.  Deed  to  Husband  and  Wife  as  Tenants  by  Entireties 280 

230.  Deed  by  Attorney  in  Fact 281 

231.  Executor's  Deed  Where  Power  to  Sell  is  Given  in  the  Will  . .  283 

232.  Deed  of  Administrator  or  Executor  for  land  Sold  at  Public 

Sale  by  Order  of  Orphans'  Court  for  Payment  of  Decedent's 
Debts    2gS 

233.  Guardian's  Deed  for  Real  Estate  Sold  by  Order  of  Orphans' 

Court    2g7 

266 


Forms.  267 

234.  Deed  by  Heirs  and  Guardian  Reciting  Abstracts  of  Wills  and 

Orphans'  Court  Proceedings  Under  the  Price  Act 290 

235.  Deed  of  Heirs  and  Corporation  Guardian  Containing  Recitals 

of  Title  Gained  by  Will,  Extinguishment  of  Ground  Rent, 
Title  Gained  by  Adverse  Possession,  Orphans'  Court  Pro- 
ceedings Under  Price  Act,  etc 294 

236.  Sheriff's  Deed  (New  Form,  Under  Act  of  1905)    307 

237.  Deed  of  Individuals  to  Trustees  of  an  Unincorporated  Church  308 

238.  Voluntary  Deed  in  Partition  31 r 

239.  Master's  Deed  in  Partition  in  Equity  3^3 

240.  Administrator's  Deed  in  Partition  by  Orphans'  Court 315 

241.  Sheriff's  Deed  in  Common  Law  Partition  by  Common  Pleas 

Courts 318 

242.  Quit  Claim  Deed  (Usual  Form)    320 

243.  Quit  Claim  Deed  (Short  Form  Under  Act  of  1909)   322 

244.  Deed  of  Confirmation  323 

245.  Deed  of  Right  of  Way  or  Easement  323 

246.  Deed  of  Exchange  of  Real  Estate   324 

247.  Ground  Rent  Deed   32$ 

Leases. 

248.  Lease  for  Property  in  City  (All  Waivers)   326 

249.  Another   Lease    33® 

250.  Farm   Lease 333 

251.  Farm  Lease  on  Shares  335 

Letters  or  Powers  of  Attorney. 

252.  Form  of  Letter  or  Power  of  Attorney  Appointing  a  Person 

Attorney  in  Fact  to  Act  for  and  Execute  Instruments  for  the 

Principal    33^ 

253.  Letter  of  Substitution 339 

254.  Letter  or  Power  of  Attorney  to  Satisfy  Mortgage 34 1 

255.  Revocation  of  Letter  of  Attorney 341 

Mortgages  and  Bonds  and  Warrants. 

256.  Sci.  Fa.  Mortgage  and  Bond  and  Warrant  (Usual  Form)   342 

257.  Building  and  Loan  Association  Mortgage  and  Bond  and  War- 

rant      342 

258.  Corporation  Mortgage  ( Sci.  Fa.)   342 

259.  Corporation  Mortgage  to  Trustee  to  Secure  Bond  Issue 342 

260.  Second  Mortgage  Clause  379 

261.  Installment  Sci.  Fa.  Mortgage  and  Bond  and  Warrant  (Second 

Mortgage)   379 

262.  Leasehold  Mortgage    386 

Releases. 

263.  Release  of  Mortgage  3°8 

264.  Release  of  Judgment  388 


268  Conveyancing  in   Pennsylvania. 

Recitals. 

265.  Recital  of  Title  by  Deed 389 

266.  Another  Form  of  Recital  of  Title  by  Deed 390 

267.  Recital  of  Title  by  Patent  390 

268.  Recital  of  Title  by  Will  390 

269.  Recital  of  Title  by  Descent  390 

270.  Recital  of  Title  by  Descent — Another  Form  390 

271.  Recital  of  Title  by  Patent,  Descent  and  Deed 391 

272.  Recital  of  Title  by  Adverse  Possession 391 

273.  Recital  of  Title  by  Voluntary  Deed  of  Partition 391 

274.  Recital  of  Title  by  Order  of  Orphans'  Court  in  Partition 392 

275.  Recital  of  Title  by  Writ  of  Partition  392 

276.  Recital  of  Title  by  Attorney  in  Fact 393 

277.  Recital  of  Title  by  Executors 393 

278.  Recital  of  Title  by  Administrator  393 

279.  Recital  of  Title  by  Sheriff's  Sale    394 

280.  Recital  of  Title  by  Sheriff  for  Property  of  a  Decedent 394 

281.  Recital  in  a  Purchase  Money  Mortgage  Given  to  a  Third  Party  395 

282.  Recital  of  Executor's  or  Administrator's  Deed  for  Land  Sold 

at   Private   Sale   for   Payment   of   Decedent's   Debts   Under 
the  Act  of  May  9,  1889  (P.  L.  182),  as  amended  by  Act  of 

June  9,  1911  (P.  L.  724)   395 

Wills. 

283.  Other  Recitals   395 

284.  Will  397 

285.  Clause  in  Will  Giving  Executor  Power  to  and  Directing  Him 

to  Sell  Real  Estate 397 

286.  Codicil 397 

287.  Form  of  Codicil  for  a  Child  Born  After  Date  of  Will 398 


208.     Acknowledgment  by  Individual  (Usual  Form). 

State  oe  Pennsylvania,       ) 
County  oe  Philadelphia,    J 

On  the  First  day  of  February,  A.  D.  1910,  before  me,  the  Sub- 
scriber, a  Notary  Public  of  the  Commonwealth  of  Pennsylvania, 
residing  in  said  County,  personally  appeared  the  above  named 
Harry  Williams  who  in  due  form  of  law  acknowledged  the 
above  Indenture  (or  letter  of  attorney,  release,  assignment,  &c, 
whatever  the  instrument  may  be)  to  be  this  act  and  deed,  to  the 
end  that  the  same  might  be  recorded  as  such. 

Witness  my  hand  and  notarial  seal  the  day  and  year  aforesaid. 

William  BlEnn,     (Seal.) 

Commission  expires,  etc.  Notary  Public. 


Forms.  269 

209.  Acknowledgment  by  an  Executor,  Administrator,  or  Trustee. 
Philadelphia  County,  ss: 

On  the  Fifth  day  of  June,  A.  D.  one  thousand  nine  hundred 
and  three  before  me,  the  subscriber,  a  Notary  Public  for  the 
Commonwealth  of  Pennsylvania,  residing  in  Philadelphia,  per- 
sonally came  the  above-named  James  Brown,  Executor  of  the 
last  Will  and  Testament  of  Rebecca  Smith,  (or  Administrator  of 
the  Estate  of  Rebecca  Smith,  or  Trustee  of  the  estate  of  Rebecca 
Smith,  as  the  case  may  be,)  who  in  due  form  of  law  acknowl- 
edged the  above  Indenture  to  be  his  act  and  deed  as  such  execu- 
tor, (or  administrator,  or  trustee,)  to  the  end  that  the  same 
might  be  recorded  as  such,  according  to  law. 

Witness  my  hand  and  seal,  the  day  and  year  aforesaid. 

James  Black,         (Seal.) 

Notary  Public. 

210.  Acknowledgment  by  Virtue  of  a  Letter  or  Power  of  Attorney. 
Philadelphia  County,  ss: 

On  the  First  day  of  March,  A.  D.  One  Thousand  nine  hun- 
dred and  ten,  before  me,  the  Subscriber,  a  Notary  Public  for  the 
Commonwealth  of  Pennsylvania,  residing  in  Philadelphia,  per- 
sonally came  the  above  named  John  Jacobs,  and  in  his  own  name 
and  in  the  names  of  his  constituents,  the  above  named  John 
Brown  and  Joseph  Brown,  in  due  form  of  law  acknowledged  the 
above-written  indenture  to  be  his  own  act  and  deed,  and  the  act 
and  deed  of  his  constituents,  the  said  John  Brown  and  Joseph 
Brown,  by  him,  the  said  John  Jacobs,  done  and  executed  by 
virtue  of  a  letter  of  attorney  to  him  for  that  purpose  granted;  to 
the  end  that  the  same  might  as  such  be  recorded. 

Witness  my  hand  and  notarial  seal,  the  day  and  year  aforesaid. 

Edward  Henry,         (Seal.) 

Notary  Public. 

211.  Form  of  Corporation  Acknowledgment. 

City  and  County  oe  Philadelphia,  ^; 

On  the  Sixteenth  day  of  August,  A.  D.  1910,  before  me,  the 
Subscriber,  a  Notary  Public  in  and  for  the  Commonwealth  of 
Pennsylvania,  residing  in  the  City  of  Philadelphia,  personally  ap- 
peared J.  B.  B.,  Secretary  of  the  O.  L.  B.  &  L.  A.,  who  being 
duly  sworn  according  to  law,  says  that  he  was  personally  present 
at  the  execution  of  the  above  Release  of  Mortgage,  and  saw  the 


270  Conveyancing   in   Pennsylvania. 

Common  Seal  or  Corporate  Seal  of  the  said  Corporation  duly 
affixed  thereto ;  that  the  seal  was  affixed  thereto  as  the  Common 
and  Corporate  Seal  of  the  said  Corporation;  and  that  the  said 
Release  of  Mortgage  was  duly  sealed  and  delivered  by  J.  A.  F., 
President  of  the  said  Corporation  as  and  for  the  act  and  deed  of 
the  said  Corporation,  for  the  uses  and  purposes  therein  men- 
tioned, and  that  the  name  of  this  Deponent  as  Secretary  and  of 
J.  A.  F.,  as  President  of  the  said  Corporation,  subscribed  to  the 
above  Release  of  Mortgage  in  attestation  of  its  due  execution 
and  delivery,  are  of  their  and  each  of  their  respective  handwrit- 
ings. 

Sworn  and  Subscribed  before  me  this  "^ 
Sixteenth  day  of  August,  A.  D.  1910.  >  J.  B.  M. 

(Seal.)  L.  P.  S.,  J 

Notary  Public. 

Commission  Expires  Feb.  13,  191 1. 

212.  Affidavit,  (General  Form). 

State  oe  Pennsylvania,       ) 

>  ss  * 
County  oe  Philadelphia,    J 

Before  me  the  Subscriber,  a  Notary  Public  for  the  Common- 
wealth of  Pennsylvania,  residing  in  Philadelphia,  personally  ap- 
peared Theodore  Black,  who  being  duly  sworn  according  to  law, 
deposes  and  says  (here  set  out  the  nature  of  the  facts  desired  to 
be  sworn  to). 

Further  Deponent  says  not. 

Sworn  and  Subscribed  to  beeore  *"] 
me  this  Tenth  day  of  February,  A.  D.     >       Theodore  Black. 
1902.  J 

William  Long, 

Notary  Public. 

Commission  expires,  etc. 

213.  Affidavit  of  Probate  of  Deed  Not  Acknowledged. 

Bucks  County,  ss: 

Be  it  remembered,  that  on  the  First  day  of  January,  A.  D.  one 
thousand  nine  hundred  and  eight,  before  me,  the  subscriber,  one 
of  the  Justices  of  the  Peace  in  and  for  the  said  county,  personally 
came  John  Jones,  of  Doylestown,  in  said  county,  farmer,  one  of 
the  subscribing  witnesses  to  the  execution  of  the  above  indenture, 


Forms.  271 

and  being  duly  sworn  (or  affirmed)  upon  his  oath  (or  affirma- 
tion) according  to  law,  doth  depose  and  say,  that  he  did  see 
Edward  Black,  the  grantor  above  named,  sign  and  seal,  and  as 
his  act  and  deed,  deliver  the  above  indenture,  deed,  or  convey- 
ance, for  the  use  and  purposes  therein  mentioned;  and  that  he 
did  also  see  William  Doyle;  subscribe  his  name  thereunto  as  the 
other  witness  of  such  sealing  and  delivery,  and  that  the  name  of 
this  deponent  thereunto  set  and  subscribed  as  a  witness,  is  of  this 
deponent's  own  proper  handwriting. 

John  Jones. 

Sworn  (or  affirmed,  as  the  case  may  be)  and  subscribed  the 
day  and  year  aforesaid  before  me.     Witness  my  hand  and  seal. 

Harry  Brown,         (Seal.) 

Justice  of  the  Peace. 

214.     Affidavit  of  Probate  of  a  Deed  Not  Acknowledged  Where  a 

Witness  is  Deceased  or  Absent. 
Washington  County,  ss: 

Be  it  remembered,  that  on  the  Sixth  day  of  July,  A.  D.  one 
thousand  nine  hundred  and  two,  before  me,  the  subscriber,  one 
of  the  Justices  of  the  Peace  in  and  for  said  county,  personally 
appeared  Richard  Green,  of  full  age,  who  being  duly  sworn,  ac- 
cording to  law,  doth  depose  and  say,  that  he  is  well  acquainted 
with  the  handwriting  of  Frederick  King,  one  of  the  subscribing 
witneses  to  the  within  ,  having  frequently  seen  him 

write,  and  that  he  verily  believes  that  the  name  of  the  said 
•Frederick  King,  signed  to  the  same  as  one  of  the  attesting  wit- 
nesses, is  the  proper  handwriting  of  the  said  Frederick  King, 
who  is  now  deceased  (or,  who  is  now  absent,  and  whose  where- 
abouts is  unknown,  or  as  the  case  may  be) . 

Richard  Green. 

Sworn  and  Subscribed  before  me,  the  day  and  year  aforesaid. 

John  Young, 
Justice  of  the  Peace. 


215.     Affidavit  to  Remove  Objections  From  Settlement  Certificate. 

County  of  Philadelphia,   1 

>  ss ' 
State  of  Pennsylvania,       j 

On  the  First  day  of  April  A.  D.  1908  before  me  the  Subscriber 
a  Notary  Public  for  the  Commonwealth  of  Pennsylvania,  resid- 


2,y2  Conveyancing  in   Pennsylvania. 

ing  in  the  City  of  Philadelphia,  personally  appeared  Emma  C. 
Morris,  who,  being  duly  sworn  according  to  law,  did  depose  and 
say  that  she  is  the  owner  of  the  premises  No.  1132  So.  E  Street, 
Philadelphia,  and  that  there  have  been  no  alterations,  additions 
or  repairs  made  to  said  premises,  that  no  sewers,  drains  or  pipes 
have  been  laid,  that  no  paving,  curbing  or  other  work  has  been 
done  in  or  upon  the  streets,  alleys  or  public  passage  ways  bound- 
ing, adjoining  or  laid  out  and  opened  for  the  use  of  the  premises 
in  question,  within  six  months  last  past  except  such  as  have  been 
fully  paid. 

And  further  that  she  is  not  the  Emma  Morris  against  whom 
a  certain  judgment  of  Three  Hundred  ($300.00)  Dollars  ap- 
pears of  record  as  of  C.  P.  No.  1,  March  Term,  1907,  No.  331, 
and  that  she  makes  this  affidavit  for  the  purpose  of  inducing  the 
Title  &  Trust  Company  of  Philadelphia,  Pa.,  to  remove  the  ob- 
jections noted  on  the  settlement  certificate  and  to  issue  its  Policy 
No.  31245  insuring  the  title  of  premises  No.  1132  So.  E  Street. 

Sworn  and  subscribed  to  before  me     ^ 
the  day  and  year  aforesaid.  I    Emma  c   Mqrris 

Robert  Roe, 

Notary  Public. 

Commission  Expires  February  1,  191 1. 

216.  Agreement  of  Sale  of  Real  Estate. 
See  form,  Paragraph  44,  page  52. 

217.  Agreement  of  Sale  by  a  Builder. 

This  Agreement,  Made  the  first  day  of  November,  A.  D.  1912 
Between  Oscar  K.  Andrews,  of  Philadelphia,  Builder,  of  the  first 
part,  and  Herman  S.  Schmidt,  also  of  said  city. 

WITNESSETH,  That  the  said  party  of  the  First  Part,  for  the 
consideration  hereinafter  mentioned,  doth  hereby,  for  himself, 
his  heirs,  executors  and  administrators,  covenant,  promise  and 
agree  with  the  said  party  of  the  Second  Part,  his  heirs  and  as- 
signs, that  he,  the  said  party  of  the  First  Part,  shall  and  will,  on 
or  before  the  First  day  of  December  next  (1912),  at  the  proper 
costs  and  charges  of  the  said  party  of  the  Second  Part,  his  heirs 
and  assigns,  by  a  good  and  sufficient  deed  of  conveyance,  grant, 
convey  and  assure,  unto  the  said  party  of  the  Second  Part,  his 
heirs  and  assigns,  All  that  certain  lot  or  piece  of  ground,  with  the 
2  story  brick  messuage  or  tenement  thereon  erected,  situate  on 


Forms.  273 

the  South  side  of  C  Street,  (No.  4221)  at  a  distance  of  32  feet 
West  Ward  from  the  West  side  of  F  Street,  in  the  50  Ward  of 
the  City  of  Philadelphia.  Containing  in  front  on  said  C  Street 
16  feet  and  in  depth  95  feet.  And  the  said  party  of  the  Second 
Part,  for  himself,  his  heirs,  executors,  and  administrators,  doth 
hereby  covenant,  promise  and  agree,  with  the  said  party  of  the 
First  Part,  his  heirs  and  assigns,  that  he,  the  said  party  of  the 
Second  Part,  shall  and  will  well  and  truly  pay  unto  the  said  party 
of  the  First  Part,  his  heirs  and  assigns,  the  sum  of  Four  thousand 
($4,000)  Dollars,  as  follows,  viz. :  One  hundred  ($100)  Dollars, 
part  thereof  upon  the  execution  of  this  Agreement,  the  receipt 
whereof  is  hereby  acknowledged;  Fourteen  Hundred  ($1400) 
Dollars,  other  part  thereof  in  cash  at  the  time  of  settlement, 
which  is  to  be  made  on  or  before  the  said  First  day  of  December 
next  (1912)  ;  Two  Thousand  ($2,000)  Dollars,  other  part  thereof 
to  be  secured  thereon  by  a  purchase  money  Bond  and  Mortgage 
drawn  in  the  latest  form,  to  contain  Attorney's  fee  and  tax  re- 
ceipt clauses,  payable  at  the  expiration  of  3  years  with  interest 
at  the  rate  of  five  and  four-tenths  per  cent,  per  annum. 

The  remaining  part  thereof  to  be  secured  thereon  by  a  Bond 
and  Mortgage,  drawn  in  the  latest  form,  to  contain  the  Attorney's 
fee  and  tax  receipt  clauses,  payable  in  monthly  instalments,  of 
not  less  than  Fifty  ($50)  Dollars  per  month,  so  that  the  whole 
amount  shall  be  paid  within  ten  months  with  interest  payable 
monthly,  the  rate  of  six  per  cent,  per  annum. 

Under  and  subject  nevertheless  to  the  express  condition  and 
restriction  that  no  building  hereafter  erected  on  said  above  de- 
scribed lot  shall  approach  nearer  than  10  feet  to  the  south  build- 
ing line  on  said  C  street,  and  that  any  building  erected  thereon 
shall  not  be  sold  to,  or  used  or  occupied  by  any  other  person  than 
one  of  the  Caucasian  descent  only  during  a  period  of  ten  years 
from  the  date  of  the  deed  to  the  purchaser  under  this  agreement. 

It  is  also  further  agreed  by  the  parties  hereunto  mentioned  that 
time  shall  be  considered  as  the  essence  of  this  agreement,  and 
that  the  sum  of  One  Hundred  Dollars  paid  at  the  execution 
hereof  is  to  be  considered  as  liquidated  damages  and  forfeited  by 
the  party  of  the  Second  Part  to  the  party  of  the  First  Part,  in  the 
event  of  the  failure  of  the  party  of  the  Second  Part  to  make  set- 
tlement at  the  time  above  set  forth. 

The  said  premises  are  to  be  conveyed  clear  of  all  encumbrance, 
except  as  above  mentioned.    Possession  is  to  be  given  at  the  time 


274  Conveyancing  in  Pennsylvania. 

of  settlement.  All  perpetual  policies  of  Fire  Insurance  to  be  paid 
for  at  withdrawal  value  and  term  policies  at  proportionate  value 
for  unexpired  term.  Taxes,  Water  Rent,  Interest  on  encum- 
brances (if  any)  Rents,  &c,  to  be  apportioned  at  date  of  settle- 
ment. The  title  is  to  be  good  and  marketable  and  such  as  will 
be  insured  by  the  Blank  Title  and  Trust  Company.  If  for  any 
reason  a  good  and  marketable  title  such  as  will  be  insured  as 
aforesaid  cannot  be  made  this  agreement  shall  be  void  and  the  sum 
paid  on  account  as  above  provided  shall  be  returned  by  the  party 
of  the  First  Part  to  the  party  of  the  Second  Part  in  lieu  of  all 
claims  for  damages  or  otherwise.  All  communications  between 
the  parties  hereto,  either  verbal  or  written,  with  reference  to  the 
subject  matter  of  this  Agreement  are  hereby  abrogated;  and  this 
Agreement  duly  accepted  and  approved,  constitutes  the  sole 
Agreement  between  the  parties  hereto,  or  upon  either  of  them. 
The  said  party  of  the  Second  Part  hereby  agrees  to  accept  the 
bond  of  the  said  party  of  the  First  Part  in  the  whole  amount  of 
said  purchase-money  to  indemnify  him  against  mechanics'  liens. 
In  Witness  Whereof,  The  said  parties  to  these  presents  have 
hereunto  set  their  hands  and  seals,  the  day  and  year  first  above 
written. 

Sealed  and  Delivered 

Oscar  K.  Andrews.        (Seal.) 
Herman  S.  Schmidt.     (Seal.) 


in  presence  of 
William  C.  Thompson, 
Robt.  E.  Rudolph. 


> 


218.     Agreement  of  Exchange  of  Real  Estate. 

This  Agreement,  Made  the  Seventh  day  of  February,  A.  D. 
One  Thousand  Nine  Hundred  and  Eleven  (1911)  Between 
Jacob  Reynolds  of  the  City  of  Philadelphia  of  the  first  part,  and 
Isaac  Simpson  also  of  said  City  of  the  second  part. 

WITNESSETH,  that  the  said  party  of  the  first  part,  for  and  in 
consideration  of  the  sum  of  One  Dollar,  in  hand  paid  by  the  party 
of  the  second  part,  the  receipt  whereof  is  hereby  acknowledged, 
and  also  in  consideration  of  the  conveyance  of  the  property  here- 
inafter mentioned  and  agreed  to  be  conveyed  by  the  party  of  the 
second  part,  Doth  hereby  agree  to  grant  and  convey  unto  the 
said  party  of  the  second  part,  All  That  Certain  Messuage  or 
Tenement  Situate  on  the  East  side  of  Fairmount  Avenue,  be- 
tween 2d  Street  and  3d  Street,  Numbered  and  known  as  221 
Fairmount  Avenue,  in  the  nth  Ward,  of  the  City  of  Philadelphia. 


Forms.  275 

And  the  said  party  of  the  second  part,  for  and  in  consideration 
of  the  sum  of  One  Dollar,  in  hand  paid  by  the  party  of  the  first 
part,  the  receipt  whereof  is  hereby  acknowledged,  and  also  in 
consideration  of  the  conveyance  of  the  property  hereinbefore 
mentioned  and  agreed  to  be  conveyed  by  the  said  party  of  the 
first  part,  Doth  hereby  agree  to  grant  and  convey  unto  the  said 
party  of  the  first  part,  All  That  Certain  Messuage  or  Tene- 
ment Situate  on  the  West  side  of  52nd  Street,  between  Chester 
Ave.  and  Springfield  Ave.,  Numbered  and  known  as  1536  So. 
52nd  Street,  in  the  40th  Ward,  of  the  City  of  Philadelphia. 

And  the  said  parties  hereby  mutually  agree  to  make  and  de- 
liver, each  to  the  other,  or  to  their  assigns,  and  at  their  own 
proper  cost  and  charges,  a  good  and  sufficient  deed  or  deeds  for 
the  conveying  and  assuring,  each  to  the  other,  in  fee  simple,  a 
good  marketable  title  of  the  property  of  each  as  hereinbefore  de- 
scribed and  mentioned,  free  and  clear  of  all  encumbrance,  (ex- 
cept as  hereinafter  noted).  Taxes,  water  rent  and  interest  on 
encumbrance,  to  be  apportioned  to  date  of  settlement. 

The  property  number  221  Fairmount  Ave.,  now  owned  by  the 
said  party  of  the  first  part,  is  to  be  conveyed  subject  to  a  Mort- 
gage of  Twenty-two  hundred  ($2200.00)  dollars. 

And  the  property  number  1536  So.  52nd  Street,  now  owned  by 
the  said  party  of  the  second  part,  is  to  be  conveyed  subject  to  a 
first  mortgage  of  Three  thousand  and  Five  hundred  ($3,500.00) 
dollars,  ancf  a  second  mortgage  of  Eight  hundred  ($800.00) 
dollars. 

And  for  the  true  and  faithful  performance  of  each  and  every 
of  the  covenants  and  agreements  above  mentioned,  the  parties  to 
these  presents  binds  themselves,  each  to  the  other,  in  the  penal 
sum  of  Fifty  Dollars,  to  be  paid  by  the  defaulting  party  as  liqui- 
dated damages. 

It  is  further  agreed  that  this  agreement  shall  apply  to  and 
bind  the  heirs,  executors,  administrators  and  assigns  of  the  re- 
spective parties. 

In  Witness  Whereof,  the  said  parties  to  these  presents  have 
hereunto  set  their  hands  and  seals  the  day  and  year  first  above 
written. 

Sealed  and  delivered 
in  the  presence  of  us  Jacob  Reynolds.         (Seal.) 

John  H.  Royer,  Isaac  Simpson.  (Seal.) 

James  Reardon. 


1 


276  Conveyancing  in  Pennsylvania. 

219.  Agreement  to  Extend  Mortgage.* 

This  Agreement,  made  this  twenty-first  day  of  March  in  the 
year  One  Thousand  Nine  Hundred  seven  (1907)  Between 
SamuEE  Black  of  the  City  of  Philadelphia  of  the  first  part,  and 
William  Brown,  also  of  the  City  of  Philadelphia,  of  the  second 
part. 

Whereas,  The  party  of  the  first  part  is  the  present  holder  of 
a  certain  bond  to  secure  the  sum  of  Eighteen  Hundred  ($1800.00) 
Dollars  given  by  Henry  Smith  to  Theodore  Thomas,  dated  the 
First  day  of  September  A.  D.  1902,  now  overdue,  which  is  se- 
cured by  a  mortgage  bearing  like  date,  of  certain  premises  therein 
described,  recorded  in  the  County  of  Philadelphia  and  State  of 
Pennsylvania  in  Mortgage  Book  W.  S.  V.  No.  149,  Page  557,  &c. 
and  assigned  to  the  said  Samuel  Black  by  Assignment  of  Mort- 
gage dated  November  30,  1904  and  recorded  in  Assignment  of 
Mortgage  Book  No.  142,  Page  100  &c. 

And  Whereas,  The  party  of  the  second  part  the  owner  of  the 
premises  so  mortgaged,  and  has  requested  the  party  of  the  first 
part  to  extend  the  said  loan  as  hereinafter  mentioned,  which  the 
said  party  of  the  first  part  has  consented  to  do  upon  the  agree- 
ment of  the  said  party  of  the  second  part  to  do  what  is  herein- 
after specified. 

Now  this  Agreement  Witnesseth,  That  it  is  agreed  by  and 
between  the  parties  hereto,  in  consideration  of  the  premises  and 
of  mutual  promises,  as  follows : 

1.  The  interest  to  be  paid  on  said  bond,  from  and  after  the 
thirtieth  day  of  May  1907,  until  the  expiration  of  the  term  next 
hereinafter  specified,  shall  be  at  the  rate  of  five  and  four-tenths 
per  centum  per  annum. 

2.  The  principal  of  said  bond  will  not  be  paid,  or  tendered  to 
be  paid,  by  the  obligor  or  owner  of  the  mortgaged  premises,  for 
the  term  of  three  years  from  the  thirtieth  day  of  May  in  the 
year  of  our  Lord  One  Thousand  Nine  Hundred  seven  (1907). 

3.  The  party  of  the  first  part  will  not  demand  payment  of  the 
principal  of  said  bond  during  said  extended  term,  provided  the 
interest  be  paid  semi-annually  within  thirty  days  after  the  same 

*This  agreement  to  extend  mortgage  need  not  be  acknowledged  unless 
it  is  intended  to  record  it,  in  which  case  add  acknowledgment  similar  to 
form  shown  on  page  268.  It  is  recommended  that  such  agreements  should 
be  recorded. 


Forms.  277 

shall  have  become  due  and  payable,  and  receipts  for  all  taxes 
and  water  rents  assessed  and  to  be  assessed  on  the  mortgaged 
premises  shall  have  been  presented  to  him  on  or  before  the  First 
day  of  September  of  each  and  every  year,  and  the  buildings 
thereon  be  kept  insured  against  loss  or  damage  by  fire  for  the 
benefit  of  the  holder  of  the  said  bond  and  mortgage  in  the  sum  of 
Eighteen  Hundred  ($1800.00)  Dollars,  and  all  other  provisions 
contained  in  said  bond  and  mortgage  be  complied  with  in  all  re- 
spects by  the  said  party  of  the  second  part. 

4.  The  party  of  the  second  part  hereby  guarantees,  assumes, 
and  covenants  to  make  prompt  payment  of  the  interest  and  prin- 
cipal of  said  bond  so  secured,  together  with  all  taxes  and  water 
rents  assessed,  and  to  maintain  the  fire  insurance,  as  aforesaid. 

5.  All  the  terms,  conditions,  stipulations,  and  provisions  con- 
tained in  said  bond  and  mortgage  not  inconsistent  herewith  are 
to  remain  in  full  force  and  effect. 

6.  This  Agreement  is  to  extend  to  and  bind  the  respective  heirs, 
executors,  administrators,  successors,  and  assigns  of  the  parties 
hereto. 

In  Witness  Whereof,  the  parties  hereto  have  hereunto  set 
their  hands  and  seals  the  day  and  year  aforesaid. 

Robert  Roe  \  WlLUAM    Brown-         (Seal.) 

T         t.  1    Samuel  Black.  (Seal.) 

John  Doe.  J  y 

Notary  Public. 
Commission  expires  February  1,  191 1. 

220.  Assignment  or  Extinguishment  of  Ground  Rent. 

See  Form,  paragraph  116,  page  153.  Note  the  same  form 
can  be  used  for  both  assignment  and  extinguishment  of  ground 
rents.  If  the  instrument  is  made  to  a  third  person  it  operates 
merely  as  an  assignment.  If  made  to  the  holder  of  the  fee  it 
operates  to  extinguish  it  (see  paragraph  116-117  on  merger). 

221.  Assignment  of  Lease. 

For  Value  Received,  I  hereby  assign,  transfer,  and  set  over 
to  William  Jones,  his  heirs,  executors,  administrators  and  as- 
signs all  my  right,  title  and  interest  in  the  within  Lease  and  all 
benefit  and  advantage  to  be  derived  therefrom. 


278  Conveyancing  in   Pennsylvania. 

Witness  my  hand  and  seal  this  13th  day  of  May,  A.  D.  1909. 
Signed,  Sealed  and  Delivered  ^ 


in  the  presence  of 
John  Doe, 
Robert  Roe. 


>-  Allen  Smith.        (Seal.) 


This  assignment  is  usually  indorsed  directly  upon  the  lease  assigned. 

222.  Assignment  of  Right  to  a  Purchase  Money  Mortgage. 
Whereas,  I,  William  Stone,  have  this  day  sold  and  conveyed 

unto  Isaac  Long,  his  heirs  and  assigns,  all  that  certain  lot,  &c, 
for  the  sum  of  $1,000.00  of  which  $500.00  has  been  advanced  by 
said  Charles  Dolan,  now  in  consideration  of  the  premises,  and 
of  the  sum  of  $1.00  to  me  in  hand  paid  by  the  said  Charles 
Dolan,  the  receipt  whereof  is  hereby  acknowledged,  I  hereby  as- 
sign and  transfer  unto  the  said  Charles  Dolan,  his  heirs,  execu- 
tors, administrators,  and  assigns,  my  right  to  a  purchase-money 
mortgage  for  the  amount  advanced  by  him. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal 
this  day  of  ,  A.  D.  19     . 

Witness :  | 

Albert  S.  Rambler,    >  William  Stone.       (Seal.) 

O.  P.  Sanders.  J 

223.  Assignment  of  Mortgage. 

See  form,  paragraph  101,  page  136. 

224.  Certificate  of  No  Set- Off. 

See  paragraph  103,  page  138. 

225.  Declaration  of  Trust. 

To  all  Whom  These  Presents  Shall  Come,  I,  E.  A.  B.,  of 
the  City  of  Philadelphia,  send  Greeting: 

Whereas  O.  J.  E.  and  K.  M.  E.  of  the  City  of  Philadelphia, 
by  deed  bearing  date  the  First  day  of  March,  A.  D.  1910,  and 
recorded  in  the  office  for  Recording  of  Deeds  in  and  for  the 
County  of  Philadelphia  in  Deed  Book  W.  S.  V.  No.  1123,  Page 
321  &c.  have,  for  and  in  consideration  of  the  sum  of  Forty-five 
Hundred  ($4500)  Dollars  granted  and  conveyed  to  me  in  fee 
simple  with  full  covenants  and  general  warranties  All  That  Cer- 
tain lot  or  piece  of  Ground  with  the  buildings  and  improvements 


Forms.  279 

thereon  erected  Situate  on  the  Northwest  Corner  of  F  Street  and 
h  Street  in  the  Fiftieth  Ward  of  the  City  of  Philadelphia,  Con- 
taining in  front  or  breadth  on  said  L  Street  sixteen  feet,  and  ex- 
tending of  that  width  in  length  or  depth  between  lines  parallel 
with  F  Street  along  the  West  side  of  F  Street  One  Hundred  feet 
to  a  certain  four  feet  wide  alley  running  Northwestwardly  and 
Southeastwardly  parallel  with  said  L,  Street,  known  and  de- 
scribed as  the  Northwest  Corner  of  F  and  L  Street,  as  by  refer- 
ence to  said  Deed  will  more  fully  appear : 

And  Whereas,  I  have  received  by  said  delivery  and  transfer, 
the  said  property  for  the  benefit  of  J.  P.  P.,  his  heirs,  executors, 
administrators  and  assigns. 

Now  Know  Ye  that  I,  the  said  E.  A.  B.  do  by  these  presents 
make  known,  admit  and  declare  that  the  said  premises  were  so 
conveyed  to  me  subject  to  the  mortgages  thereon  existing  at  the 
time  of  the  transfer,  and  that  I  now  hold  and  will  continue  to 
hold  the  same  in  trust  only  for  the  use  and  benefit  of  J.  P.  P.  his 
heirs,  Executors,  Administrators  and  Assigns,  and  that  I  have 
no  beneficial  interest  therein  except  by  what  may  arise  by  legal 
and  equitable  implications,  and  I  do  for  myself,  my  Heirs,  Ex- 
ecutors and  Administrators  covenant  and  agree  to  and  with  the 
said  J.  P.  P.  his  heirs,  Executors,  Administrators  and  Assigns, 
that  I  and  my  Heirs  shall  and  will  convey  the  said  premises  by 
good  and  sufficient  deed  to  the  said  J.  P.  P.  his  heirs,  executors, 
administrators  and  assigns,  as  they  may  direct  and  require,  when- 
ever requested  so  to  do,  subject  only  to  such  encumbrances  as 
may  now  be  charged  against  said  property. 

And  I  do  further  for  myself,  my  Heirs,  Executors  and  Ad- 
ministrators covenant  and  agree  to  and  with  the  said  J.  P.  P.  his 
Heirs,  Executors,  Administrators  and  Assigns,  that  I  or  my  Heirs 
shall  not  do  or  knowingly  suffer,  or  permit  any  act,  deed,  matter 
or  thing  whereby  the  said  premises  can,  shall  or  may  be  in  any 
wise  impaired,  injured,  encumbered  in  title,  interest,  charge  or 
estate,  otherwise  howsoever. 

In  Witness  Whereof  I  have  hereunto  set  my  hand  and  seal 
this  first  day  of  April  in  the  year  of  our  Lord  One  Thousand 
Nine  Hundred  and  Ten  (1910). 

Signed,  Sealed  and  delivered  "^ 
in  the  presence  of  us  —     .    ~  /r,     ,  . 

W.  F.  L.,  f  E.A.  B.         (Seal.) 

O.  J.  M.  '  J 


280  Conveyancing  in  Pennsylvania. 

City  and  County  of  Philadelphia,  ss: 

On  the  first  day  of  April  A.  D.  1910,  did,  before  me  the  sub- 
scriber, a  Notary  Public  for  the  Commonwealth  of  Pennsylvania, 
residing  in  Philadelphia,  personally  appear  the  above  named  E. 
A.  B.  who  in  due  form  of  law  acknowledged  the  above  Indenture 
to  be  his  act  and  deed,  and  that  the  same  might  be  recorded  as 
such. 

Witness  my  hand  and  Notarial  seal  the  day  and  year  aforesaid. 

W.  F.  L., 
Notary  Public. 

Unless  this  declaration  of  trust  is  recorded  it  would  not  avail  against  the 
creditors  of  E.  A.  B. 

226.  Deed  in  Fee  by  Individual  (Usual  Form). 
See  form,  paragraph  53,  page  64. 

227.  Deed  in  Fee.     (Short  Form  Under  Act  of  1909.) 

See  paragraph  57,  page  76. 

228.  Form  of  Deed  by  Corporation. 

See  Deed  form  Par.  53,  page  64.  Deeds  both  by  and  to  Cor- 
porations are  similar  in  form  to  the  ordinary  deed  form  of  indi- 
viduals except  that  after  the  name  of  the  corporation  is  put  the 
words  "Its  successors  and  assigns"  instead  of  "heirs"  as  in  the 
case  of  individuals.  Also  where  conveyance  is  made  by  a  corpo- 
ration take  care  to  add  the  Corporation  form  of  acknowledgment, 
as  set  forth  in  form  Par.  211. 

229.  Deed  to  Husband  and  Wife  as  Tenants  by  Entirety. 

The  deed  form  used  to  convey  property  to  husband  and  wife  as 
Tenants  by  Entirety  is  the  same  as  the  ordinary  deed  form  shown 
in  Par.  53  on  page  ,  except  that  after  the  operative  words  or 
granting  clause  (see  paragraph  54,  d)  and  immediately  before  the 
description  are  inserted  the  words  "As  Tenants  by  Entireties"*  so 
that  the  clause  would  read  as  follows : 

*It  is  customary  to  insert  the  words  "As  tenants  by  entireties,"  although 
it  has  been  decided  that  a  husband  and  wife  cannot  hold  title  jointly  in 
any  other  way  (See  Par.  sd,  ante).  Nevertheless  all  the  title  companies 
in  Philadelphia  still  require  the  insertion  of  said  words  before  approving 
the  deed,  possibly  because  of  a  doubt  expressed  by  the  Supreme  Court 
in  the  case  of  Merritt  v.  Whitlock,  200  Pa.  50.  It  is  submitted  that  this 
doubt  has  been  removed  by  the  case  of  Hoover  v.  Potter,  42  Pa.  Super. 
21,  cited  with  approval  though  not  on  this  exact  point  in  Rhodes'  Estate,. 
232  Pa.  492. 


Forms.  281 

"Do  grant,  bargain  and  sell,  release  and  confirm  unto 
the  said  Grantees  their  heirs  and  assigns  As  Tenants  by 
Entireties,  All  That  Certain,  &c," 

In  the  habendum,  that  is  the  To  Have  and  To  Hold  clause,  (See 
Par.  55  a)  insert  the  words,  "As  Tenants  by  Entireties"  imme- 
diately after  the  habendum  so  that  the  habendum  will  read : 

"To  have  and  To  Hold  said  lot  or  piece  of  ground 
above  described  with  the  buildings  and  improvements 
thereon  erected,  hereditaments  and  premises  hereby 
granted  or  mentioned  and  intended  so  to  be  with  the  ap- 
purtenances unto  the  said  Grantees,  their  heirs  and  as- 
signs to  and  for  the  only  proper  use  and  behoof  of  the 
said  Grantees  their  heirs  and  assigns  forever  As  Tenants 
by  Entireties." 

230.     Deed  by  Attorney  In  Fact. 

This  Indenture;  made  the  Twenty-first  day  of  November,  in 
the  year  of  our  Lord  One  thousand  nine  hundred  and  eight,  be- 
tween John  Jones,  of  the  City  of  Philadelphia,  and  Agnes  his 
wife,  of  the  first  part,  by  John  Jacobs,  their  attorney  in  fact, 
specially  constituted  by  power  of  attorney  bearing  date  the  Second 
day  of  September,  A.  D.  1908,  and  recorded  in  the  office  for 
recording  of  deeds  in  and  for  the  County  of  Philadelphia,  in 
Letter  of  Attorney  book  W.  S.  V.,  No.  272,  page  341,  as  by  refer- 
ence thereunto  being  had,  appears,  and  Henry  Brown  of  the  City 
and  County  of  Philadelphia,  State  of  Pennsylvania,  of  the  second 
part;  WITNESSETH,  that  the  said  party  of  the  first  part,  for 
and  in  consideration  of  the  sum  of  One  Dollar,  lawful 
money  of  the  United  States,  to  him  in  hand  paid  by  the 
said  party  of  the  second  part,  at  and  before  the  ensealing 
and  delivery  of  these  presents,  the  receipt  and  payment 
whereof  he  doth  hereby  acknowledge,  hath  granted,  bargained, 
sold,  released,  and  confirmed  and  by  these  presents  doth 
grant,  bargain,  sell,  release,  and  confirm,  unto  the  said  party 
of  the  second  part,  and  to  his  heirs  and  assigns,  all  that 
messuage,  &c,  (here  set  out  the  description  of  the  property,  after 
which  may  be  set  out  the  recital).  Together  with  all  and  singular 
the  rights,  liberties,  privileges,  hereditaments,  and  appurtenances 
whatsoever  thereto  belonging,  and  the  reversions  and  remainders, 
rents,  issues,  and  profits  thereof ;  and  also  all  the  estate  and  in- 
terest whatsoever  of  him,  the  said  party  of  the  first  part,  in  law 


282  Conveyancing   in   Pennsylvania. 

or  equity,  of,  in,  to,  or  out  of  the  same.  To  have  and  to  hold  the 
premises  hereby  granted,  or  intended  so  to  be,  with  the  appurte- 
nances, unto  the  said  party  of  the  second  part,  his  heirs  and 
assigns,  to  the  use  of  the  said  party  of  the  second  part,  his  heirs 
and  assigns,  forever.  And  the  said  party  of  the  first  part,  for 
himself,  his  heirs,  executors,  and  administrators,  doth  hereby 
covenant,  promise,  and  agree  to  and  with  the  said  party  of  the 
second  part,  his  heirs  and  assigns,  that  he,  the  said  party  of  the 
first  part,  and  his  heirs,  the  above-mentioned  and  described  prem- 
ises, with  the  appurtenances,  unto  the  said  party  of  the  second 
part,  against  the  said  party  of  the  first  part,  and  his  heirs,  and 
against  all  and  every  other  person  or  persons  whomsoever  law- 
fully claiming  or  to  claim,  "by,  from,  or  under  him,  them  or  any 
of  them,"  shall  and  will  warrant  and  forever  defend  by  these 
presents. 

In  Witness  Whereof  the  said  party  of  the  first  part,  by  John 
Jacobs  their  attorney  in  fact,  have  hereunto  set  their  hands  and 
seals,  the  day  and  year  first  above  written. 

John  Jones.         (Seal.) 
Agnes  Jones.       (Seal.) 
By  their  Attorney, 


Signed,  Sealed  and  Delivered 
in  the  presence  of 
Wm.  F.  Belsterling, 
Andrew  Smith. 


John  Jacobs.        (Seal.) 


Philadelphia  County,  ss: 

On  the  2 1  st  day  of  November,  A.  D.  1908,  before  me  the  sub- 
scriber, a  Notary  Public  for  the  Commonwealth  of  Pennsylvania, 
residing  in  Philadelphia,  personally  came  the  above  named  John 
Jacobs  and  in  his  own  name  and  the  name  of  his  constituents  the 
above  named  John  Jones  and  Agnes  Jones  in  due  form  of  law 
acknowledged  the  above  written  indenture  to  be  his  own  act  and 
deed  and  the  act  and  deed  of  his  Constituents,  the  said  John 
Jones  and  Agnes  Jones  done  and  executed  by  virtue  of  a  letter 
of  attorney  to  him  for  that  purpose  granted ;  to  the  end  that  the 
same  might  be  recorded  as  such. 

Witness  my  hand  and  notarial  seal  the  day  and  year  aforesaid. 

William  F.  Belsterling, 
(Seal.)  Notary  Public. 

Commission  expires,  &c. 


Forms.  283 

231.  Executors'*  Deed  Where  Authority  to  Sell  is  Given  in  a  Will. 
This  Indenture  made  the  Fifteenth  day  of  January,  in  the 
year  of  our  Lord  one  thousand  nine  hundred  and  nine,  between 
Adam  Brown  and  Andrew  Black,  of  the  City  of  Philadelphia, 
Executors  of  the  last  will  and  testament  of  John  Jones,  late  of 
Philadelphia,  of  the  one  part,  and  George  Smith,  of  Philadelphia, 
of  the  other  part:  Whereas  the  said  John  Jones,  by  virtue  of 
divers  good  conveyances  and  assurances  in  law,  duly  had  and 
executed,  became  in  his  lifetime  seized  in  his  demesne,  as  of  fee, 
amongst  other  lands,  of  and  in  a  certain  messuage  or  tenement 
and  tract  of  land,  situate  in  the  City  of  Philadelphia,  County  of 
Philadelphia  aforesaid,  containing  Two  hundred  acres,  be  the 
same  more  or  less ;  and  being  so  thereof  seised,  made  his  last  will 
and  testament  in  writing,  bearing  date  the  Twenty-third  day  of 
June,  A.  D.  One  thousand  nine  hundred  and  ten,  wherein  and 
whereby,  amongst  other  things,  he  ordered  that  the  whole  of  his 
real  estate  should  be  sold  by  his  Executors  thereinafter  named, 
'of  which  said  will  he  appointed  Adam  Brown  and  Andrew 
Black  Executors,  as  in  and  by  the  said  recited  will,  since  his  de- 
cease duly  proved,  and  remaining  in  the  Register's  office  at  Phila- 
delphia, recourse  being  thereunto  had,  appears:  Now 
this  indenture  witnesseth,  that  the  said  Adam  Brown  and 
Andrew  Black,  Executors  as  aforesaid,  for  and  in  consideration 
of  the  sum  of  One  Dollar,  to  them  in  hand  paid  by  the  said 
George  Smith  at  and  before  the  sealing  and  delivery  hereof,  the 
receipt  whereof  is  hereby  acknowledged,  have  granted,  bargained, 
sold,  aliened,  released,  and  confirmed,  and  by  these  presents,  by 
force  and  virtue  of  the  said  last  recited  will,  do  grant,  bargain, 
sell,  alien,  release,  and  confirm,  unto  the  said  George  Smith  all 
that  above-mentioned  and  described  messuage,  &c,  bounded  and 
described  as  follows  :  beginning,  &c.  (here  describe  the  premises.) 
Together  with  all  and  singular  the  rights,  liberties,  privileges, 
hereditaments,  and  appurtenances  whatsoever,  thereunto  belong- 
ing or  any  wise  appertaining,  and  the  reversions  and  remainders, 

*Neither  an  executor  nor  an  administrator,  unless  the  authority  is  given 
either  by  the  will,  or  by  the  orphans'  court  where  the  personal  estate  is 
insufficient  to  pay  debts,  has  any  power  to  sell  or  interfere  with  a  dece- 
dent's real  estate.  In  drawing  an  executor's  deed,  first  ascertain  the  source 
of  his  power  and  recite  it  in  the  deed.  For  form  of  deed  of  executor  em- 
powered by  the  orphans'  court  to  sell  real  estate  for  payment  of  debts, 
consult  administrator's  form,  Par.  232. 

Covenant  in  brackets  may  be  omitted. 


2&4  Conveyancing  in   Pennsylvania. 

rents,  issues,  and  profits  thereof;  and  also  all  the  estate,  right, 
title,  interest,  property,  claim,  and  demand  whatsoever  of  the  said 
John  Jones  at  and  immediately  before  the  time  of  his  decease,  in 
law  or  equity,  or  otherwise  howsoever,  of,  in,  to,  or  out  of  the 
same.  To  have  and  to  hold  the  said  messuage  or  tenement  and 
tract  of  Two  hundred  acres  of  land,  hereditaments,  and  premises 
hereby  granted  or  mentioned,  or  intended  so  to  be,  with  the  ap- 
purtenances, unto  the  said  George  Smith,  his  heirs  and  assigns, 
to  the  only  proper  use  and  behoof  of  the  said  George  Smith,  his 
heirs  and  assigns,  forever.  (And  the  said  Adam  Brown  and 
Andrew  Black,  Executors  aforesaid  for  themselves,  their  heirs, 
executors,  and  administrators,  do  severally,  and  not  jointly,  nor 
the  one  for  the  other,  or  for  the  act  or  deed  of  the  other,  but  each 
for  his  own  acts  only,  covenant,  promise,  and  agree  to  and  with 
the  said  George  Smith  his  heirs  and  assigns,  by  these  presents, 
that  they,  the  said  Adam  Brown  and  Andrew  Black,  have  not 
heretofore  done  or  committed  any  act,  matter,  or  thing  whatso- 
ever, whereby  the  premises  hereby  granted,  or  any  part  thereof, 
is,  are,  or  shall  or  may  be  impeached,  charged,  or  encumbered  in 
title,  charge,  estate,  or  otherwise  howsoever.) 

In  Witness  Whereof  the  said  parties  have  hereunto  set  their 
hands  and  seals  the  day  and  year  first  above  written. 

Signed,  Sealed  and  Delivered  ^ 
in  the  presence  of 
Clement  Herman, 
Rudolph  Haas. 


Adam  Brown.  (Seal.) 

Andrew  Black.         (Seal.) 


Northumberland  County,  .«.• 

On  the  Fifteenth  day  of  January  A.  D.  1909,  before  me  the 
subscriber,  one  of  the  Justices  of  the  Peace  in  and  for  the  said 
County,  personally  appeared  the  above  named  Adam  Brown  and 
Andrew  Black,  Executors  under  the  last  will  and  testament  of 
John  Jones,  and  in  due  form  of  low  acknowledged  the  foregoing 
to  be  their  and  each  of  their  respective  act  and  deed  as  such 
Executors  to  the  intent  that  the  same  might  be  recorded  as  such. 

Witness  my  hand  and  seal  the  day  and  year  aforesaid. 

(Seal.)  Clement  Herman, 

Justice  of  Peace. 


Forms.  285 

232.     Deed  by  Administrator  or  Executor*  Where  Land  is  Sold  at 
Public  Sale  by  Order  of  Orphans'  Court  for  Payment  of  Debts. 

This  Indenture,  made  the  Fifth  day  of  July,  in  the  year  of 
our  Lord  on  thousand  nine  hundred  and  three,  between  John 
Burns,  and  William  Jones,  Administrators  of  all  and  singular 
the  goods,  and  chattels,  rights  and  credits  which  were  of  William 
Doe,  late  of  Philadelphia,  merchant,  who  died  intestate,  of  the 
one  part,  and  John  James,  of  Philadelphia,  of  the  other  part: 
Whereas  the  said  William  Doe,  in  his  lifetime  and  at  the  time  of 
his  death,  was  seized  in  his  demesne,  as  of  fee,  of  and  in  a  cer- 
tain tract  (or  tracts,  as  the  case  may  be)   of  land,  situated  in 
Philadelphia,  containing  three  acres :    And  whereas,  letters  of  ad- 
ministration of  all  and  singular  the  goods  and  chattels,  rights  and 
credits  which  were  of  the  said  William  Doe  at  the  time  of  his 
death,  were  afterwards,  in  due  form  of  law,  committed  to  the 
aforesaid  John  Burns  and  William  Jones:    And  whereas,  by 
the  petition  of  the  John  Burns  and  William  Jones,  to  the 
Judges  of  the  Orphans'  Court,  held  in  and  for  the  County  of 
Philadelphia,  at  Philadelphia;  the  first  day  of  November  A.  D. 
1903,  setting  forth  that  the  personal  estate  of  the  said  William 
Doe  was  not  sufficient  to  pay  his  just  debts,  a  schedule  of  which, 
together  with  an  inventory  of  the  said  debts,  and  also  a  statement 
of  all  the  real  estate  of  said  decedent,  was  thereto  attached  and 
praying  said  Court  to  allow  them  to  make  sale  of  so  much  of  the 
said  lands  as  the  said  Court  should  judge  necessary  for  the  pur- 
pose aforesaid ;  and  thereupon  it  was  considered  and  ordered  by 
the  said  Court,  that  the  lands  hereafter  described  should  be  sold 
according  to  the  prayer  of  the  petitioners :    And  whereas,  in  pur- 
suance of  the  said  order,  and  by  force  and  virtue  of  the  laws  of 
the  Commonwealth  of  Pennsylvania  in  such  case  made  and  pro- 
vided, afterwards,  to  wit,  on  the  third  day  of  December,  A.  D. 
1903,  at  Philadelphia,  the  said  John  Burns  and  William  Jones 

*Until  bond  has  been  entered  by  the  administrator  or  executor,  selling 
under  direction  of  the  orphans'  court,  his  deed  is  ineffectual  to  pass  title, 
hence  at  the  settlement  demand  the  production  of  a  certificate  from  the 
clerk  of  the  orphans'  court  that  bond  has  been  entered  in  conformity  to  the 
decree  of  the  court.  Iti  is  good  practice  to  record  this  certificate  with  the 
deed,  though  often  this  is  not  done.  The  best  practice,  however,  is  to  have 
the  clerk  of  the  orphans'  court  certify  on  the  deed  both  to  decree  authoriz- 
ing the  sale  and  to  the  entry  of  the  bond.  See  end  of  deed,  form  Par.  234, 
page  293.  In  this  way  all  of  the  advantages  of  recording  this  certificate  are 
obtained,  while  the  cost  of  recording  it  as  a  separate  instrument  is  saved. 


286  Conveyancing  in  Pennsylvania. 

did  expose  to  sale  at  public  vendue  the  hereinafter  described  land,, 
with  the  appurtenances,  after  having  duly  advertised  the  same  ac- 
cording to  law,  and  then  and  there  did  sell  the  same  to  the  said 
John  James,  for  the  sum  of  Ten  thousand  Dollars,  he  being  the 
highest  bidder,  and  that  the  highest  and  best  price  bid  for  the 
same ;  which  sale,  on  report  thereof  made  to  the  said  Judges,  was, 
on  the  Sixth  day  of  January,  A.  D.  1904,  confirmed  by  the  said 
Court,  and  it  was  considered  and  adjudged  by  the  said  Court 
that  the  same  should  be  and  remain  firm  and  stable  forever,  as  by 
the  records  and  proceedings  of  the  said  Court,  reference  being 
thereunto  had,  will  more  fully  and  at  large  appear :  Now  this  in- 
denture witnesseth,  that  the  said  John  Burns  and  Wieeiam 
Jones  for  and  in  consideration  of  the  said  sum  of  Ten  Thousand 
Dollars,  to  them  in  hand  paid  by  the  said  John  James,  at  and 
before  the  ensealing  and  delivery  hereof,  the  receipt  whereof  they 
do  hereby  acknowledge,  have  granted,  bargained,  sold,  released, 
and  confirmed  and  by  these  presents,  in  pursuance  and  by  virtue 
of  the  said  order  of  court,  do  grant,  bargain,  sell,  release,  and  con- 
firm unto  the  said  John  James,  and  to  his  heirs  and  assigns,  all 
that  the  said  messuage,  &c,  bounded  and  described  as  follows: 
Beginning,  &c.  (Here  describe  the  premises.)  Together  with 
all  and  singular  the  rights,  liberties,  privileges,  hereditaments,  and 
appurtenances  whatsoever  thereunto  belonging,  or  in  any  wise 
appertaining,  and  the  reversions  and  remainders,  rents,  issues, 
and  profits  thereof :  And  also  all  the  estate,  right,  title,  interest, 
property,  claim,  and  demand  whatsoever  of  the  said  Wileiam 
Doe,  at  and  immediately  before  the  time  of  his  decease,  in  law  or 
equity,  or  otherwise  howsoever,  of,  in,  to,  or  out  of  the  same. 

To  have  and  to  hold  the  said  messuage  or  tenement  and  tract 
of  three  acres  of  land,  hereditaments,  and  premises  hereby 
granted,  or  mentioned,  or  intended  so  to  be,  with  the  appurte- 
nances, unto  the  said  John  James,  his  heirs  and  assigns,  to  the 
only  proper  use  and  behoof  of  the  said  John  James,  his  heirs  and 
assigns,  forever. 

In  Witness  Whereof,  We  have  hereunto  set  our  hands  and 
seals  the  day  and  year  first  above-written. 

Signed,  sealed  and  delivered  ~\ 

in  the  presence  of  us,  I    John  Burns.  (Seal.) 

Wm.  F.  Beesterling,  J  Wieeiam  Jones.        (Seal.) 

Andrew  Smith.  J 


Forms.  287 

Philadelphia  County,  ss: 

On  the  Fifth  day  of  July,  A.  D.  1903,  before  me  the  Subscriber 
a  Notary  Public  for  the  Commonwealth  of  Pennsylvania  residing 
in  Philadelphia  personally  appeared  the  above  named  John 
Burns  and  William  Jones,  Administrators  of  the  Estate  of  Wil- 
liam Doe  who  in  due  form  of  law  acknowledged  the  above  inden- 
ture to  be  their  respective  act  and  deed  as  such  administrators  to 
the  end  that  the  same  might  be  recorded  as  such. 

Witness  my  hand  and  seal  the  day  and  year  aforesaid. 

William  F.  Belsterling, 
(Seal.)  Notary  Public. 

Commission  Expires  April  1,  1907. 

233.  Guardian's*  Deed  for  Lands  Sold  by  Order  of  Orphans'  Court. 
This  Indenture,  made  the  Sixth  day  of  September,  A.  D.  one 
thousand  nine  hundred  and  ten,  between  Patrick  Coe,  Guardian, 
legally  appointed  by  the  Orphans'  Court  of  the  County  of  Phila- 
delphia of  the  estate  of  John  Brown,  a  minor  son  of  Harry 
Brown,  late  of  Philadelphia,  Blacksmith,  deceased,  of  the  one 
part,  and  Edward  Jones,  of  Philadelphia,  Salesman,  of  the  other 
part:  Whereas  by  force  and  virtue  of  cerain  good  conveyances 
and  assurances  in  the  law,  duly  had  and  executed  the  said  Harry 
Brown  became  in  his  lifetime  lawfully  seized  in  his  demesne,  as 
of  fee,  of  and  in  a  certain  lot  or  piece  of  land,  situate  in,  &c,  and 
bounded  and  described  as  follows  (here  describe  the  premises,) 
with  the  appurtenances,  and  being  so  thereof  seised,  died  intes- 
tate, (or,  if  the  deceased  made  a  will,  add  the  following  after  the 
word  seised,  "made  his  last  will  and  testament  in  writing,  bearing 

*Guardians  are  of  two  kinds,  testamentary  or  such  as  are  appointed  by 
the  decedent  in  his  will  and  appointive,  or  such  as  are  appointed  by 
orphans'  court  where  a  minor  inherits  property  and  no  guardian  has  ever 
been  appointed.  In  drawing  a  deed  from  a  guardian  first  ascertain  how 
the  guardian  was  appointed.  If  by  will,  recite  that  part  of  the  will.  If 
by  the  orphans'  court,  recite  that  fact  as  above. 

The  portion  in  brackets  is  a  covenant  which  is  not  essential  to  the 
validity  of  the  deed  and  is  often  omitted.  Until  bond  has  been  entered  by 
the  guardian  his  deed  is  ineffectual  to  pass  title.  Therefore,  at  settlement, 
a  certificate  of  the  clerk  of  the  orphans'  court  must  be  produced,  showing 
that  bond  has  been  entered  in  conformity  with  the  order  of  the  court. 
It  is  good  practice  to  record  this  certificate  with  the  deed  though  the  more 
usual  practice  is  to  have  the  clerk  of  the  orphans'  court  certify  to  the 
entering  of  the  bond  as  shown  at  end  of  deed,  form,  Par.  234,  page  293.  See 
also  note  to  form,  Par.  232,  page  285. 


288  Conveyancing  in   Pennsylvania. 

date  the  day  of  ,  A.  D.  ,  wherein  and 

whereby  (among  other  things)  he  did  give  and  devise  the  said 
plantation  and  tract  of  land  unto  his  said  son  John  Brown,  and 
his  heirs,  as  in  and  by  the  said  in  part  recited  will,  since  his  de- 
cease duly  proved  and  remaining  in  the  Register's  office  at  Phila- 
delphia, reference  being  thereunto  had,  appears ;")  and  whereas  at 
an  Orphans'  Court  held  at  Philadelphia  aforesaid,  in  and  for  the 
said  county,  upon  the  petition  of  the  said  John  Brown,  the  said 
Patrick  Coe  was  duly  appointed  Guardian  of  the  estate  of  the 
said  John  Brown  during  his  minority,  and  it  appearing  to  the  said 
Court  that  the  said  John  Brown  was  not  possessed  of  a  personal 
estate  adequate  to  his  maintenance  and  education,  ( [or  "that  the 
estate  of  said  minor  was  'in  such  a  state  of  dilapidation  and 
decy,']  [or  'so  unproductive  and  expensive,']  that  it  would  be  to 
the  interest  and  benefit  of  said  minor  that  the  estate  should  be 
sold,")  the  said  Court  did  then  and  there  make  an  order  empow- 
ering the  said  Patrick  CoE  to  make  public  sale  of  the  said  planta- 
tion and  tract  of  land,  the  estate  of  the  said  John  Brown,  for  the 
purposes  aforesaid,  and  to  make  a  title  thereto  to  the  purchaser ; 
in  pursuance  whereof,  the  said  Patrick  CoE  having  first  given 
bond  with  sufficient  surety  to  the  said  Court,  according  to  the  Act 
of  Assembly,  for  the  faithful  discharge  of  trust  thus  committed 
to  him,  did,  on  the  day  of  ,  A.  D.  19     ,  on  the 

premises  aforesaid,  in  accordance  with  the  said  order,  expose  the 
premises  therein  mentioned  to  sale  by  public  vendue,  and  sold  the 

same  to  the  said  Edward  Jones,  at  and  for  the  sum  of  $ 

he  being  the  highest  bidder,  and  that  the  highest  and  best  price 
bidden  for  the  same,  which  sale,  on  report  thereof  made  to  the 
Judges  of  the  said  Court,  on  the  day  of  ,  A.  D.  19     , 

was  confirmed  by  the  said  Court;  and  it  was  considered  and  ad- 
judged by  the  said  Court  that  the  same  should  be  and  remain 
firm  and  stable  forever,  as  by  the  records  and  proceedings  of  the 
said  Court,  reference  thereunto  being  had,  will  fully  appear. 
Now  this  indenture  witnesseth,  that  the  said  Patrick  CoE,  for 
and  in  consideration  of  the  sum  of  $  ,  to  him  in  hand  paid 

by  the  said  Edward  Jones,  at  and  before  the  ensealing  and  de- 
livery hereof,  the  receipt  and  payment  whereof  he  doth  hereby 
acknowledge,  hath  granted,  bargained,  sold,  aliened,  released,  and 
confirmed,  and  by  these  presents  (by  virtue  of  the  powers  and 
authorities  to  him  given  by  the  aforesaid  order  of  Orphans' 
Court,  and  pursuant  to  the  directions  thereof)  doth  grant,  bar- 


Forms.  289 

gan,  sell,  alien,  release,  and  confirm  unto  the  said  Edward  Jones, 
his  heirs  and  assigns,  all  that  the  above-mentioned  and  described 
lot  or  piece  of  land,  with  the  appurtenances  thereto  belonging. 
Together  with  all  and  singular  the  rights,  liberties,  privileges, 
hereditaments,  and  appurtenances  whatsoever,  thereunto  belong- 
ing or  in  any  wise  appertaining,  and  the  reversions  and  remain- 
ders, rents,  issues,  and  profits  thereof;  and  also  all  the  estate, 
right,  title,  interest,  property,  claim,  and  demand  whatsoever  of 
the  said  Harry  Brown  in  his  lifetime,  at  and  immediately  before 
the  time  of  his  decease,  of,  in,  to,  or  out  of  the  same. 

To  have  and  to  hold  the  said  plantation  and  tract  of  land, 
hereditaments,  and  premises  hereby  granted  or  mentioned,  or  in- 
tended so  to  be,  with  the  appurtenances,  unto  the  said  Edward 
Jones,  his  heirs  and  assigns,  to  the  only  proper  use,  benefit,  and 
behoof  of  the  said  Edward  Jones,  his  heirs  and  assigns,  forever. 
[And  the  said  Patrick  Coe  doth  covenant,  promise,  and  agree  to 
and  with  the  said  Edward  Jones,  his  heirs  and  assigns,  by  these 
presents,  that  he,  the  said  Patrick  Coe,  hath  not  done,  committed, 
or  wittingly  or  willingly  suffered  to  be  done  or  committed,  any 
act,  matter,  or  thing  whatsoever  whereby  the  premises  aforesaid, 
or  any  part  thereof,  is,  are,  or  shall  or  may  be  impeached,  charged 
or  encumbered  in  title,  charge,  or  estate,  or  otherwise  howsoever.] 

In  Witness  WherEoe,       have  hereunto  set      hand    and  seal 
the  day  and  year  first  above-written. 
Signed,  sealed  and  delivered 


1 


in  the  presence  of  us,  I  Patrick  Coe.     (Seal.) 

Wm.  F.  Belsterling,       J  (Seal.) 

Andrew  Smith. 
Philadelphia  County,  ss: 

On  the  day  of  ,  A.  D.  19     ,  before  me,  the 

subscriber,  a  notary  public  for  the  Commonwealth  of  Pennsyl- 
vania residing  in  Philadelphia,  personally  appeared  the  above- 
named  Patrick  Coe,  guardian  of  the  estate  of  John  Brown,  a 
minor,  and  in  due  form  of  law  acknowledged  the  foregoing  in- 
denture to  be  his  act  and  deed  as  such  guardian  to  the  end  that 
it  might  be  recorded  as  such. 

Witness  my  hand  and  seal  the  day  and  year  aforesaid. 

(Seal.)  William  F.  Belsterling, 

Notary  Public. 

Commission  expires,  &c. 


290  Conveyancing   in   Pennsylvania. 

234.     Deed  of  Heirs  and  Guardian  of  Minor  Heir  Reciting  Abstracts 
of  Will  and  Orphans'  Court  Proceedings  Under  Price  Act. 

This  Indenture,  Made  the  first  day  of  August  in  the  year  of 
our  Lord  One  Thousand  Nine  Hundred  and  Five  (1905)  be- 
tween G.  F.  B.,  single  man,  and  W.  C.  B.,  single  woman,  H.  G. 
B.  and  L.  F.,  his  wife,  C.  F.  B.  and  M.  L.,  his  wife,  and  H.  G.  B., 
guardian  of  the  estate  of  W.  A.  B.,  a  minor,  all  of  the  city  of 
Philadelphia  (hereinafter  called  the  grantors),  and  S.  D.  P.,  of 
the  city  of  Philadelphia,  gentleman,  (hereinafter  called  grantee). 
Whereas,  J.  D.  and  wife,  by  indenture  bearing  date  the  7th 
day  of  July,  A.  D.  1887,  and  recorded  at  Philadelphia  in  Deed 
Book  G.  G.  P.  No.  276,  page  442,  &c,  granted  and  conveyed  the 
hereinafter  described  premises  unto  M.  E.  B.,  wife  of  G.  B.,  in  fee. 
And  Whereas,  The  said  M.  E.  B.,  being  so  thereof  seised, 
afterwards  departed  this  life  on  the  19th  day  of  January,  A.  D. 
1896,  having  first  made  and  published  her  last  will  and  testament 
in  writing  bearing  date  the  12th  day  of  June,  A.  D.  1888,  since  her 
decease  duly  proved  and  registered  in  the  office  of  the  register  of 
wills  in  and  for  the  city  and  county  of  Philadelphia,  and  recorded 
in  Will  Book  No.  182,  page  576,  &c. 

Wherein  and  Whereby,  She  did  will  (inter  alia)  as  follows: 
"I  give,  devise  and  bequeath  unto  my  children  and  unto  the  chil- 
dren of  my  said  husband  by  a  former  marriage  and  their  respec- 
tive heirs  forever,  all  my  property,  real,  personal  and  mixed,  of 
what  nature,  kind,  soever  and  wheresoever  the  same  shall  be  at 
the  time  of  my  death  share  and  share  alike." 

Whereas,  The  said  children  of  said  M.  E.  B.  and  those  of  G. 
B.,  her  husband  by  a  former  marriage,  were  W.  P.  B.,  H.  G.  B. 
and  C.  F.  B.,  her  own  children,  and  G.  H.  B.,  W.  C.  B.,  E.  E.  B. 
and  C.  C.  B.,  children  of  her  husband  by  a  former  wife. 

And  Whereas,  The  said  W.  F.  B.,  one  of  the  children  above 
mentioned,  departed  this  life  on  the  18th  day  of  June,  A.  D.  1897, 
a  widower  intestate,  leaving  surviving  him  one  child,  the  minor 
W.  A.  B.,  in  whom  said  undivided  one-seventh  part  or  share  in 
said  premises  is  now  vested  in  fee. 

And  Whereas,  At  an  orphans'  court  held  at  Philadelphia  on 
the  18th  day  of  July,  A.  D.  1903,  of  July  Term,  1903,  No.  53,  the 
said  H.  P.  B.  was  appointed  guardian  of  the  estate  of  W.  A.  B.,  a 
minor. 

And  Whereas,  At  an  orphans'  court  aforesaid  held  as  aforesaid 
as  of  July  Term,  1903,  No.  53,  upon  petition  duly  presented  to 


Forms.  291 

the  court  on  the  29th  day  of  April,  A.  D.  1905,  it  was  ordered  and 
decreed  that  H.  P.  B.,  guardian  as  aforesaid,  join  with  the  other 
parties  in  interest  in  the  sale  and  conveyance  of  the  premises  here- 
inafter described  and  granted  unto  the  said  J.  T.  T.  for  the  sum 
of  $4,000  for  the  whole  thereof  free  and  clear  of  all  encumbrances 
as  therein  mentioned.  Security  be  entered  in  double  the  amount 
of  the  share  of  the  minor,  which  security  has  since  been  duly  en- 
tered. 

And  Whereas,  the  said  C.  C.  B.  departed  this  life  on  or  about 
the  4th  day  of  March,  A.  D.  1903,  unmarried  and  without  issue, 
having  first  made  and  published  her  last  will  and  testament  in 
writing  bearing  date  the  7th  day  of  April,  A.  D.  1902,  duly 
proven  and  registered  in  the  office  of  the  register  of  wills  in  and 
for  the  city  and  county  of  Philadelphia  in  Will  Book  No.  246, 
page  60,  &c. 

Wherein  and  Whereby,  After  directing  the  payment  of  her 
just  debts  and  funeral  expenses  she  did  will  as  follows :  "All  the 
rest,  residue  and  remainder  of  my  estate,  real,  personal  and 
mixed,  whatsoever  and  wheresover  of  which  I  may  be  seised, 
possessed  or  entitled  to,  I  give,  devise  and  bequeath  unto  my  be- 
loved sister  W.  C.  B.,  her  heirs  and  assigns  absolutely  forever." 

And  Whereas,  The  said  E.  E.  B.  departed  this  life  on  or 
about  the  2d  day  of  December,  A.  D.  1903,  having  first  made  and 
published  her  last  will  and  testament  in  writing,  bearing  date  the 
25th  day  of  March,  A.  D.  1903,  duly  proven  Nov.  15,  1904,  re- 
corded at  Philadelphia  in  Will  Book  No.  262,  page  115,  &c. 

Wherein  and  Whereby,  She  did  will  as  follows :  "Fourth," 
"All  the  rest,  residue  and  remainder  of  my  estate,  real  or  per- 
sonal whatsoever  and  wheresoever  the  same  may  be  situate,  of 
which  I  may  be  seised  or  possessed  of,  I  give,  devise  and  be- 
queath to  my  beloved  sister,  W.  C.  B.,  absolutely." 

Now  this  Indenture  Witnesseth,  That  the  said  grantor  for 
and  in  the  consideration  of  the  sum  of  four  thousand  ($4,000.00) 
dollars  lawful  money  of  the  United  States  unto  them  well  and 
truly  paid  by  the  said  S.  D.  P.  at'  or  before  the  sealing  and  de- 
livery hereof,  the  receipt  whereof  is  hereby  acknowledged,  have 
granted,  bargained  and  sold,  released  and  confirmed,  and  by 
these  presents  do  grant,  bargain  and  sell,  release  and  confirm 
unto  the  said  S.  D.  P.,  his  heirs,  ael  that  certain  lot  or  piece 


292  Conveyancing  in   Pennsylvania. 

of  ground  with  the  two  story  and  attic  brick  dwelling  thereon 
erected  situate  on  the  south  side  of  F  Street  in  the  50th  Ward 
of  the  city  of  Philadelphia,  at  the  distance  of  fifty-seven  feet, 
seven  inches  (S7"7")  westward  from  the  west  side  of  Eighth 
Street,  containing  in  front  or  or  breadth  sixteen  (16')  feet  and 
extending  of  that  width  in  length  or  depth  southward  between 
two  parallel  lines  at  right  angles  to  said  F  Street  50  feet,  to  a 
three-foot  wide  alley  extending  eastward  into  Eighth  Street. 

Together  with  all  and  singular  the  buildings,  improvements, 
ways,  streets,  alleys,  passages,  water,  water  courses,  rights,  lib- 
erties, privileges,  hereditaments  and  appurtenances  whatsoever, 
unto  the  hereby  granted  premises  belonging,  or  in  any  wise  ap- 
pertaining, and  the  reversions  and  remainders,  rents,  issues  and 
profits  thereof;  and  all  the  estate,  right,  title,  interest,  property, 
claim  and  demand  whatsoever  of  them  the  said  grantors  as  well 
in  law  and  equity,  of,  in  and  to  the  same  and  every  part  thereof, 
to  have  and  to  hold  said  lot  or  piece  of  ground  with  said  mes- 
suage or  building  thereon  erected,  hereditaments  and  premises 
hereby  granted,  or  mentioned  and  intended  so  to  be,  unto  the  said 
S.  D.  P.,  his  heirs  and  assigns,  to  and  for  the  only  proper  use  and 
behoof  of  the  said  S.  D.  P.,  his  heirs,  and  assigns  forever. 

And  the  said  grantors,  G.  F.  B.,  W.  C.  B.,  H.  G.  B.,  C.  F.  B., 
for  themselves,  their  heirs,  executors  and  administrators  do  cove- 
nant and  agree  to  and  with  the  said  grantee,  his  heirs  and  as- 
signs and  by  these  presents  that  they,  the  said  grantors,  their 
heirs,  all  and  singular  the  hereditaments  and  premises  hereby 
granted  or  mentioned  and  intended  so  to  be,  with  the  appurte- 
nances unto  the  said  grantee,  his  heirs  and  assigns  against  them, 
the  said  grantors,  their  heirs,  and  against  all  and  every  person 
whomsoever  lawfully  claiming  or  to  claim  the  same  or  any  part 
thereof,  by,  from,  or  under  them,  or  any  of  them,  shall  and  will 
warrant  and  forever  defend. 

In  Witness  Whereof,  The  parties  of  the  first  part  have  here- 
unto set  their  respective  hands  and  seals,  dated  the  day  and  year 
as  above  written. 


Signed,  Sealed  and  Delivered 
in  the  presence  of 
Wm.  F.  Belsterling, 
Henry  B.  Lang. 


G.  F.  B. 

(Seal.) 

W.  C.  B. 

(Seal.) 

H.  G.  B. 

(Seal.) 

>  L.  F.  B. 

(Seal.) 

C.  F.  B. 

(Seal.) 

1  M.  L.  B. 

(Seal.) 

H.  G.  B., 

Guardian 

(Seal.) 

Forms.  293 

Philadelphia  County,  ss: 

On  the  first  day  of  August,  A.  D.  1905,  before  me  the  sub- 
scriber, a  notary  public  for  the  Commonwealth  of  Pennsylvania, 
residing  in  Philadelphia,  personally  appeared  the  above  named 
G.  F.  B.,  W.  C.  B.,  H.  G.  B.,  L.  F.  B.,  C.  F.  B.  and  M.  L.  B.,  and 
in  due  form  of  law  acknowledged  the  above  indenture  to  be  their 
and  each  of  their  act  and  deed  and  desired  the  same  might  be  re- 
corded as  such. 

Witness  my  hand  and  notarial  seal  the  day  and  year  aforesaid. 

Wm.  F.  Belsterling, 

Notary  Public. 
Commission  Expires,  &c.     (Seal.) 

Philadelphia  County,  ss: 

On  the  first  day  of  August,  A.  D.  1905,  before  me,  the  sub- 
scriber, a  notary  public  for  the  Commonwealth  of  Pennsylvania, 
residing  in  Philadelphia,  personally  appeared  the  above-named 
H.  G.  B.,  guardian  of  the  estate  of  W.  A.  B.,  a  minor,  who  in 
due  form  of  law  acknowledged  the  foregoing  indenture  to  be  his 
act  and  deed,  as  such  guardian,  to  the  end  that  it  might  be  re- 
corded as  such : 

Witness  my  hand  and  seal  the  day  and  year  aforesaid. 

Wm.  F.  Belsterling, 

Notary  Public. 
Commission  Expires,  &c.     (Seal.) 

City  and  County  oe  Philadelphia,  ss: 

At  an  Orphans'  Court  for  the  city  and  county  aforesaid, 
held  at  Philadelphia  on  the  18th  day  of  July,  A.  D.  1903,  as  of 
July  Term,  1903,  No.  53,  H.  G.  B.  was  appointed  guardian  of  the 
estate  of  W.  A.  B.,  a  minor.  And  at  an  orphans'  court  for  the 
city  and  county  aforesaid,  held  at  Philadelphia  on  the  29th  day 
of  April,  1905,  the  said  H.  G.  B.,  guardian  of  the  estate  of  W.  A. 
B.,  the  above-named  minor,  was  ordered  and  decreed  to  join  with 
the  other  parties  in  interest  in  the  sale  and  conveyance,  execution 
and  delivery  of  all  and  every  deed  or  deeds  or  other  assurances 
in  law  necessary  to  vest  the  said  minor's  undivided  one-seventh 
interest,  part  or  share  in  said  real  estate,  in  the  said  S.  D.  P.  in 
fee,  and  the  said  court  ordered  and  decreed  that  said  guardian 
was  authorized  to  receive  and  receipt  for  the  purchase  money, 


294  Conveyancing  in   Pennsylvania. 

security  to  be  entered  in  double  the  amount  of  the  share  of  said 
minor,  to  wit,  eight  hundred  sixty  dollars,  which  security  has 
been  entered  and  approved. 

Witness  my  hand  and  seal  of  said  court  this  second  day  of 
August,  A.  D.  1905. 

A.  J.  Fortin, 
1st  Asst.  Clerk  O.  C.     (Seal.) 

235.  Deed  of  Heirs  and  Corporation  Guardian  Containing  Recitals 
of  Title  Gained  by  Will,  Descent,  Adverse  Possession,  Ex- 
tinguishment of  Ground  Bent,  Orphans'  Court  Proceedings 
Under  Price  Act,  etc. 

This  Indenture,  Made  the  sixteenth  day  of  December,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  eighty-four 
(1884),  between  Luther  G.  Smith,  of  the  city  of  Philadelphia, 
and  Clara  V.  Smith,  his  wife,  Emma  E.  Stearly,  of  the  said 
city,  single  woman,  John  Newton,  of  the  said  city,  and  Ida  I., 
his  wife,  and  Mary  S.  Rainer,  of  the  said  city,  single  woman, 
all  of  the  first  part ;  "The  Fidelity  Insurance  Trust  and  Safe 
Deposit  Company,"  Guardian,  of  the  estate  of  Mary  Leath 
Courtney,  a  minor,  of  the  second  part;  and  Peter  S.  Dildine, 
of  the  city  of  Philadelphia,  gentleman,  of  the  other  part. 

Whereas,  Jacob  Stearly  was,  in  his  lifetime,  lawfully  seised 
in  his  demesne,  as  of  fee,  of  and  in  the  several  lots  or  pieces  of 
ground  and  premises  hereinafter  particularly  described,  with  the 
appurtenances,  and  being  so  thereof  seised  as  aforesaid,  departed 
this  life  on  the  twenty-second  day  of  July,  Anno  Domini  one 
thousand  eight  hundred  and  eighty-three  (1883)  having  first 
made  and  published  his  last  will  and  testament  in  writing  bearing 
date  the  fourteenth  day  of  March,  Anno  Domini,  1882,  duly 
proven  the  thirteenth  day  of  July,  Anno  Domini  1883,  and  re- 
maining on  record  in  the  office  of  the  register  of  wills  in  and  for 
the  City  and  County  of  Philadelphia,  wherein  and  whereby, 
after  directing  the  payment  of  his  just  debts  and  funeral  ex- 
penses he,  the  said  Jacob  Stearly,  did  will  as  follows,  viz :  "Item 
I  give,  devise  and  bequeath  all  the  rest,  residue  and  remainder 
of  my  estate,  real,  personal  and  mixed,  whatsoever  and  where- 
soever the  same  may  be  situate  and  of  which  I  may  die  seised, 
possessed  or  entitled  to  in  manner  following,  to  wit :  One  full, 
equal  fifth  part  thereof  unto  my  grandchild,  Clara  D.  Smith, 
her  heirs,  executors,  administrators  and  assigns  forever  abso- 


Forms.  295 

lutely.  One  full,  equal  fifth  part  thereof  unto  my  grandchild 
Emma  E.  Steady,  her  heirs,  executors,  administrators  and  assigns 
forever  absolutely.  One  full,  equal  fifth  part  thereof  unto  my 
grandchild  Ida  I.  Newton,  her  heirs,  executors,  administrators, 
assigns  forever  absolutely.  One  full,  equal  fifth  part  thereof  unto 
my  grandchild  Mary  Rainer,  her  heirs,  executors,  administrators 
and  assigns  forever  absolutely.  And  the  remaining  one-fifth 
part  thereof  unto  my  great-grandchild,  Mary  Leath  Courtney, 
her  heirs,  executors,  administrators,  and  assigns  forever  abso- 
lutely." 

And  Whereas,  All  of  the  devisees  named  in  said  recited  will 
are  of  full  age  except  the  said  Mary  Leath  Courtney.  And 
Whereas,  At  an  orphans'  court  for  the  City  and  County  of 
Philadelphia,  held  at  Philadelphia,  on  the  twenty-ninth  day  of 
December,  Anno  Domini  1883,  upon  the  petition  of  the  said 
Mary  Leath  Courtney,  who  was  then  above  the  age  of  fourteen 
years,  the  said  "The  Fidelity  Insurance  Trust  and  Safe  Deposit 
Company,"  was  appointed  guardian  of  her  estate.  And  Where- 
as, At  an  orphans'  court  for  the  city  and  county  aforesaid,  held 
at  Philadelphia  on  the  twenty-ninth  day  of  November,  Anno 
Domini  1884,  the  petition  of  the  said  "The  Fidelity  Insurance 
Trust  and  Safe  Deposit  Company,"  guardian  as  aforesaid,  was 
presented  setting  forth  "That  the  said  Mary  Leath  Courtney  is 
seised  in  her  demesne  as  of  fee  of  and  in  an  equal  undivided 
fifth  part  or  share  of  and  in  the  real  estate  hereinafter  particu- 
larly described.  That  all  the  other  parties  interested  in  said 
real  estate,  being  sui  juris,  are  anxious  and  desirous  of  disposing 
of  the  same."  That  Peter  S.  Dildine,  of  the  City  of  Philadelphia, 
has  offered  to  purchase  the  said  real  estate  for  the  price  or  sum 
of  sixteen  thousand  dollars  clear  of  all  encumbrances,  and  ail  the 
other  owners  of  said  real  estate  have  agreed  to  sell  at  said  price, 
and  are  anxious  and  desirous,  that  the  proper  and  necessary 
deeds  and  assurances  for  said  real  estate  should  be  executed  to 
the  said  Peter  S.  Dildine,  and  a  perfect  title  for  the  same  made  to 
him,  but  are  prevented  from  so  doing  on  account  of  the  inability 
of  the  petitioners  to  join  with  them  in  the  execution  and  delivery 
of  said  deeds  as  guardian  aforesaid,  without  the  consent  and 
order  of  the  said  court.  That  the  said  price  offered  for  said 
real  estate  is  much  greater  than  the  assessed  value  of  same,  and 
that  the  said  amount  is  to  the  best  of  petitioner's  knowledge  and 
belief  as  large  a  price  as  can  now  be  obtained  for  said  property. 


296  Conveyancing  in   Pennsylvania. 

That  it  is  to  the  advantage  of  said  minor's  estate  that  the  said 
real  estate  should  be  sold,  inasmuch  as  the  same  is  in  great  need 
of  repair  and  in  a  dilapidated  condition.  The  petitioners  there- 
fore prayed  the  court  to  approve  of  the  price  offered  for  said 
real  estate  and  authorize  them  to  sell  the  said  minors  undivided 
fifth  interest  therein  for  one-fifth  of  the  said  price,  offered  as 
aforesaid,  viz :  $3,200 ;  and  that  they  be  authorized,  ordered  and 
directed  as  guardian  of  said  Mary  Leath  Courtney,  to  join  with 
the  other  owners  of  the  above  mentioned  real  estate  in  the  execu- 
tion and  delivery  of  the  proper  and  necessary  deed  or  deeds  and 
other  assurances  needful  and  necessary  for  vesting  and  convey- 
ing said  real  estate  to  the  said  Peter  S.  Dildine,  in  fee  simple. 
Whereupon  the  said  court  upon  due  consideration  of  the  said 
petition,  ordered  and  decreed  that  the  said  "The  Fidelity  In- 
surance Trust  and  Safe  Deposit  Co.,"  Guardian  of  said  Mary 
Leath  Courtney,  be  authorized  to  sell  the  said  minors  one  full, 
equal  and  undivided  fifth  part  or  share  of  and  in  the  real  estate 
hereinafter  particularly  described  for  the  price  or  sum  of  three 
thousand  two  hundred  dollars  to  Peter  S.  Dildine,  his  heirs  and 
assigns,  and  that  the  said  "The  Fidelity  Insurance  Trust  and 
Safe  Deposit  Co.,"  guardian  as  aforesaid,  be  authorized  and  di- 
rected to  make,  execute  and  deliver,  or  join  with  the  other  owners 
of  said  real  estate  in  the  execution  and  delivery  of,  all  and  every 
deed  or  deeds  or  other  assurances  in  the  law  necessary  to  vest 
said  minor's  undivided  fifth  part  or  share  in  said  real  estate  in 
the  said  Peter  S.  Dildine,  in  fee  simple,  and  that  said  minor's 
undivided  interest  in  said  real  estate  so  sold  be  and  remain  to  the 
said  Peter  S.  Dildine,  his  heirs  and  assigns,  firm  and  stable  for- 
ever, and  the  said  guardian  was  thereby  authorized  to  receive 
and  receipt  for  said  purchase  money.  And  the  said  court  further 
ordered  that  security  be  entered  by  said  guardian  in  the  sum  of 
six  thousand  four  hundred  dollars,  and  approved  of  the  bond  of 
the  said  "The  Fidelity  Insurance  Trust  and  Safe  Deposit  Com- 
pany," as  such  security.  Which  security  has  since  been  duly  en- 
tered. 

Now  this  Indenture  Witnesseth,  That  the  said  parties  of 
the  first  and  second  parts  hereto  for  and  in  consideration  of  the 
sum  of  sixteen  thousand  dollars  lawful  money  of  the  United 
States  of  America,  unto  them  well  and  truly  paid  by  the  said 
Peter  S.  Dildine  at  or  before  the  sealing  and  delivery  hereof,  the 
receipt  whereof  is  hereby  acknowledged,  have  granted,  bargained 


Forms.  297 

and  sold,  released  and  confirmed,  and  by  these  presents,  the  said 
"The  Fidelity  Insurance  Trust  and  Safe  Deposit  Co.,"  guardian 
as  aforesaid  (the  party  of  the  second  part  hereto),  acting  herein 
by  virtue  of  the  powers  and  authorities  to  them  given  by  the 
above  recited  order  of  the  orphans'  court,  and  in  pursuance  of 
the  directions  thereof,  do  grant,  bargain,  and  sell,  release  and 
confirm  unto  the  said  Peter  S.  Dildine,  his  heirs, 

All  that  certain  lot  or  piece  of  ground  with  the  two-story 
and  attic  brick  dwelling  and  two-story  frame  dwelling  thereon, 
erected  situate  on  the  south  side  of  Fairmount  Avenue,  in  the 
Twelfth  Ward  of  the  City  of  Philadelphia,  described  according 
to  a  recent  survey  thereof  made  by  Andrew  French,  surveyor  and 
regulator  of  the  Fifth  District,  as  follows,  viz:  Beginning  at  a 
point  on  the  south  side  of  said  Fairmount  Avenue  at  the  distance 
of  fifty-seven  feet  seven  inches  westward  from  the  west  side  of 
Hermitage  Street,  thence  extending  southward  at  right  angles 
with  Fairmount  Avenue  through  the  middle  of  a  wall,  eighteen 
feet  to  a  point,  thence  still  southward  on  a  line  parallel  with 
Fourth  Street  fifty-five  feet,  ten  inches,  thence  westward  par- 
allel with  said  Fairmount  Avenue  fifteen  feet  to  a  point,  thence 
northward  parallel  with  the  said  Fourth  Street  seventy-four  feet 
to  the  south  side  of  said  Fairmount  Avenue,  and  thence  eastward 
along  the  same  sixteen  feet,  five  inches  to  the  place  of  beginning 
Also  all  that  certain  lot  or  piece  of  ground  with  the  two-story 
frame  dwelling  thereon  erected  situate  on  the  south  side  of 
Fairmount  Avenue  in  the  Twelfth  Ward  of  the  said  city  de- 
scribed according  to  a  recent  survey  thereof  made  by  Andrew 
French,  surveyor  and  regulator  of  the  Fifth  District,  as  follows, 
viz :  Beginning  at  a  point  on  the  south  side  of  said  Fairmount 
Avenue  at  the  distance  of  seventy-four  feet  westward  from  the 
west  side  of  Hermitage  Street,  thence  southward  partly  through 
the  middle  of  a  nine-inch  wall  on  a  line  parallel  with  Fourth 
Street  fifty-nine  feet,  ten  inches  to  a  point,  thence  westward  par- 
allel with  the  said  Fairmount  Avenue  fourteen  feet,  three  inches, 
and  one-eight  of  an  inche  to  a  point,  thence  northward  on  a  line 
parallel  with  said  Fourth  Street  forty-six  feet,  nine  inches  to  a 
point, thence  still  northward  on  a  line  at  an  angle  of  eighty- five  de- 
grees forty-nine  and  three-quarters  minutes  with  said  Fairmount 
Avenue,  thirteen  feet  to  the  south  side  of  said  avenue,  and  thence 
eastward  along  the  same  thirteen  feet,  five  inches  to  the  place  of 
beginning.    Also  all  that  certain  lot  or  piece  of  ground  with  the 


298  Conveyancing   in   Pennsylvania. 

three-story  brick  dwelling,  five-story  brick  building  and  one-story 
frame    stable   and   other   buildings    and   improvements    thereon 
erected,  situate  in  the  Twelfth  Ward  of  the  said  city  described 
according  to  a  recent  survey  thereof  made  by  Andrew  French, 
surveyor  and  regulator  of  the  Fifth  District,  as  follows,  viz: 
Beginning  at  a  point  on  the  south  side  of  said  Fairmount  Avenue 
at  the  distance  of  eighty-seven  feet,  five  inches,  westward  from 
the  west  side  of  said  Hermitage  Street,  thence  extending  south- 
ward on  a  line  at  an  angle  of   eighty-five   degrees   forty-nine 
and  three-quarters  minutes  with  said  Fairmount  Avenue,  thir- 
teen feet  to  a  point,  thence  still  southward  on  a  line  parallel  with 
said  Fourth  Street  forty-six  feet,  nine  inches,  to  a  point,  thence 
eastward  on  a  line  parallel  with  the  said  Fairmount  Avenue  four- 
teen feet,  three  and  one-eighth  inches  to  a  point,  thence  south- 
ward on  a  line  parallel  with  said  Fourth  Street  thirty-two  feet, 
two  inches  and  one-half  of  an  inch  to  a  point,  thence  eastward  on 
a  line  parallel  with  said  Fairmount  Avenue  sixty-nine  feet  to  the 
west  side  of   said  Hermitage   Street    (formerly  called   Smith's 
Alley),  thence  southward  along  the  same  twenty-seven  feet  to 
the  northwardly  side  of  a  certain  court  laid  out  parallel  with  said 
Fairmount  Avenue  and  leading  into  and  from  the  said  Hermitage 
Street,  and  thence  westward  along  the  northwardly  side  of  said 
court  ninety-five  feet,  seven  and  three-quarters  inches  to  a  point, 
thence  southward  on  a  line  parallel  with  said  Fourth  Street  one 
foot,  seven  and  one-quarter  inches  to  a  point,  thence  westward 
on  a  line  parallel  with  said  Fairmount  Avenue,  along  the  north- 
wardly side,  of  said  court  (narrowed  one  foot,  seven  and  one- 
quarter  inches),  twenty-four  feet,  five  and  one-quarter  inches  to 
a  point,  thence  northward  on  a  line  parallel  with  the  said  Fourth 
Street  forty-six  feet,  three  inches  to  a  point,  thence  eastward  on 
a  line  parallel  with  said  Fairmount  Avenue,  thence  northward  on 
a  line  parallel  with  said  Fourth  Street  twenty-four  feet,  nine 
inches  to  a  point,  thence  westward  on  a  line  parallel  with  said 
Fairmount  Avenue  one  foot  to  a  point,  thence  northward  on  a 
line  parallel  with  said  Fourth  Street,  partly  through  the  middle 
of   a   nine-inch   wall   forty-nine    feet,    seven   and   three-quarter 
inches  to  a  point  in  the  southwardly  side  of  said  Fairmount 
Avenue,  and  thence  eastward  along  the  same  thirty-four  feet, 
eight  inches  to  the  place  of  beginning. 

Also  all  that  certain  lot  or  piece  of  ground  with  the  eight 
three-story  brick  dwellings  thereon  erected,  situate  on  the  west- 


Forms.  299 

erly  side  of  Hermitage  (formerly  called  Smith's  Alley),  in  the 
Twelfth  Ward  of  the  said  city  described  according  to  a  recent 
survey  thereof,  made  by  Andrew  French,  surveyor  and  regulator 
of  the  Fifth  District,  as  follows,  viz :  Beginning  on  the  westerly 
side  of  said  Hermitage  Street  at  the  distance  of  one  hundred  and 
nineteen  feet  and  one-half  of  an  inch  southward  from  the  south 
side  of  said  Fairmount  Avenue,  thence  extending  westwardly 
on  a  line  parallel  with  said  Fairmount  Avenue  and  along  the 
north  side  of  a  certain  court  laid  out  parallel  with  said  avenue 
ninety-five  feet,  seven  and  three-quarters  inches  to  a  point,  thence 
southward  on  a  line  parallel  with  Fourth  Street  one  foot,  seven 
and  one-quarter  inches,  thence  westward  on  a  line  parallel  with 
said  Fairmount  Avenue;  along  the  north  side  of  said  court  (as 
narrowed  one  foot,  seven  and  one-quarter  inches)  twenty- four 
feet,  five  and  one-quarter  inches  to  a  point,  thence  southward  on 
a  line  parallel  with  said  Fourth  Street  through  the  middle  of  a 
nine-inch  wall  twenty-nine  feet,  eight  and  three-quarters  inches 
to  a  point,  thence  eastward  on  a  line  parallel  with  said  Fair- 
mount  Avenue  one  hundred  and  twenty  feet,  one  inch  to  the 
westerly  side  of  said  Hermitage  Street,  and  thence  northward 
along  the  same  thirty-one  feet,  four  inches  to  the  place  of  be- 
ginning including  on  the  northwardly  side  of  said  lot  or  piece  of 
ground  the  said  court  upon  which  said  dwellings  front.  And 
also  all  that  CERTAIN  lot  or  piece  of  ground  with  the  two- 
story  frame  dwelling  thereon  erected,  described  according  to  a 
recent  survey  thereof  made  by  Andrew  French,  surveyor  and 
regulator  of  the  Fifth  District  as  follows,  viz :  Situate  on  the 
westwardly  side  of  Hermitage  Street,  at  the  distance  of  seventy- 
four  feet  southwardly  from  the  southwardly  side  of  Fairmount 
Avenue  in  the  Twelfth  Ward  of  the  said  city,  containing  in 
front  or  breadth  on  the  said  Hermitage  Street  eighteen  feet  and 
one-half  of  an  inch  and  extending  in  length  or  depth  westward 
between  lines  parallel  with  said  Fairmount  Avenue  sixty-nine 
feet,  bounded  northwardly  partly  by  other  ground  now  of  the 
estate  of  Jacob  Steady,  deceased,  but  intended  to  be  hereby  con- 
veyed to  said  Peter  S.  Dildine,  and  partly  by  ground  of 
Eastward  by  said  Hermitage  Street  and  southward  and  west- 
ward by  other  ground  of  the  estate  of  Jacob  Steady,  deceased, 
intended  to  be  hereby  conveyed  to  said  Peter  S.  Dildine.  The 
premises  Eirst  described  being  composed  of  two  certain  lots  or 
pieces  of  ground  which  Ulrich  Ruskstuhl  and  Margaret,  his  wife, 


300  Conveyancing  in   Pennsylvania. 

by  indenture  bearing  date  the  fourth  day  of  April,  Anno  Domini 
1814,  and  recorded  at  Philadelphia  in  Deed  Book  I.  H.,  No.  9, 
page  1,  &c.,  granted  and  conveyed  unto  the  said  Jacob  Steady 
in  fee.  Under  and  subject  to  the  payment  of  a  certain  yearly 
rent  charge  of  fifteen  Spanish  milled  silver  dollars  to  John  Red- 
man, his  heirs  and  assigns  in  equal  half  yearly  portions  or  pay- 
ments on  the  first  day  of  the  months  of  May  and  November  in 
each  and  every  year,  forever  free  of  all  deductions  or  abate- 
ments for  taxes  or  assessments.  But  free  and  clear  discharge 
and  indemnified  of  and  from  all  other  rents,  rent  charges,  liens 
and  encumbrances  whatsoever,  which  yearly  rent  charge  of  fif- 
teen Spanish  milled  silver  dollars  John  B.  Newman  and  others, 
executors  of  the  last  will  and  testament  of  James  Lyle,  Anno 
Domini  1830,  and  recorded  at  Philadelphia,  in  Deed  Book  G.  W. 
R.,  No.  36,  page  371,  &c,  released  and  extinguished  unto  the 
said  Jacob  Stearly,  his  heirs  and  assigns.  The  premises  second 
described  being  the  greater  part  of  a  certain  lot  or  piece  of 
ground  which  Peter  Richmond  by  indenture,  bearing  date  the 
eleventh  day  of  May,  Anno  Domini  1842,  and  recorded  at  Phil- 
adelphia in  Deed  Book  G.  S.,  No.  38,  page  670,  &c,  granted  and 
conveyed  unto  the  said  Jacob  Stearly,  in  fee.  Under  and  sub- 
ject to  the  payment  of  a  certain  yearly  ground  rent  or  sum  of 
sixteen  Spanish  milled  silver  dollars  payable  to  John  Redman, 
his  heirs  and  assigns  in  half  yearly  payments  on  the  first  day  of 
the  months  of  May  and  November  in  every  year  forever  with- 
out any  deduction  for  taxes,  &c,  which  yearly  ground  rent  or 
sum  of  sixteen  Spanish  milled  silver  dollars  John  Kessler,  Junior, 
trustee,  by  indenture,  bearing  date  the  twenty-third  day  of 
November,  Anno  Domini  1868  and  recorded  at  Philadelphia  in 
Deed  Book  J.  T.  O.,  No.  198,  Page  15,  &c,  released  and  ex- 
tinguished unto  said  Jacob  Stearly  his  heirs  and  assigns.  The 
premises  third  described  being  composed  as  follows,  viz:  A 
portion  thereof  being  a  part  of  the  said  lot  or  piece  of  ground 
which  Peter  Richmond  granted  and  conveyed  to  the  said  Jacob 
Stearly,  in  fee  as  above  recited.  Another  part  thereof  John 
Shaw  by  Indenture  bearing  date  the  Twenty-second  day  of 
March,  Anno  Domini  183 1,  and  recorded  at  Philadelphia  in 
Deed  Book  A.  M.,  No.  9,  Page  500,  &c,  granted  and  conveyed 
unto  the  said  Jacob  Stearly,  in  fee,  under  and  subject  to  the 
payment  of  a  certain  yearly  ground  rent  or  sum  of  Forty-five 
dollars  lawful  silver  money  of  the  United  States  of  America, 


Forms.  301 

unto  Jacob  F.  Hoeckley  his  heirs  and  assigns,  on  the  first  of  the 
months  of  January  and  July  in  every  year  forever  without  de- 
duction for  taxes  &c,  which  yearly  ground  rent  the  said  Jacob 

F.  Hoeckley  and  Anna  Elizabeth  his  wife  by  Deed  Poll  bearing 
the  date  the  sixth  day  of  April,  Anno  Domini  1831,  and  recorded 
at  Philadelphia  in  Deed  Book  A.  M.,  No.  10,  Page  288,  &c,  re- 
leased and  extinguished  unto  the  said  Jacob  Steady,  his  heirs  and 
assigns.  And  William  Martin  by  Deed  Poll  bearing  date  the 
Eight  day  of  April,  Anno  Domini  183 1,  and  recorded  at  Phila- 
delphia in  Deed  Book  A.  M.,  No.  10,  page  289,  &c,  did  remise  re- 
lease and  forever  quit  claim  unto  the  said  Jacob  Stearly,  his 
heirs  and  asigns  all  his  (the  said  William  Martin's)  estate,  right, 
title  and  interest  in  and  to  a  certain  gore  or  strip  of  ground 
mentioned  and  described  in  the  above  recited  Indenture  from 
John  Shaw  to  said  Jacob  Stearly,  and  the  said  Jacob  Stearly 
and  Mary  M.,  his  wife,  by  indenture  bearing  date  the  Eighth  day 
of  April,  Anno  Domini  1831,  and  recorded  at  Philadelphia  in  Deed 
Book  A.  M.,  No.  10,  page  295,  &c,  granted  and  confirmed  unto 
Isaac  Griffith,  his  heirs  and  assigns,  a  certain  yearly  rent  charge 
or  sum  of  Eighteen  Spanish  Milled  silver  dollars,  each  dollar 
weighing  seventeen  pennyweights  and  six  grains  at  least  to  be 
yielding  and  paying  and  to  be  had  taken  and  received  in  half 
yearly  payments  on  the  first  day  of  the  months  of  October  and 
April  in  every  year  thereafter  forever  without  any  deduction 
for  Taxes  &c,  out  of  the  premises  therein  particularly  described, 
being  the  premises  conveyed  by  the  said  John  Shaw  to  the  said 
Jacob  Stearly  in  fee  as  above  recited.  Which  yearly  rent  charge 
Lukens  Griffith  and  Sarah  his  wife  (by  their  Attorney  Anthony 
P.  Morris)  by  Indenture  bearing  date  the  fifth  day  of  February, 
Anno  Domini  1851,  and  recorded  at  Philadelphia  in  Deed  Book 

G.  W.  C,  No.  82,  page  202,  &c,  released  and  extinguished  unto 
the  said  Jacob  Stearly,  his  heirs  and  assigns.  Another  part 
of  said  premises  third  described  John  Kessler  by  Indenture 
bearing  date  the  third  day  of  April,  Anno  Domini  1833,  and  re- 
corded at  Philadelphia  in  Deed  Book  Am  M.,  No.  33,  page  577, 
&c,  granted  and  conveyed  unto  the  said  Jacob  Stearly  in  fee. 
Another  part  thereof  being  the  greater  part  of  a  certain  lot 
or  piece  of  ground  which  Jonathan  Collom  and  Mary  his  wife 
by  Indenture  bearing  date  the  eighth  day  of  April,  Anno  Domini 
183 1,  and  recorded  at  Philadelphia  in  Deed  Book  A.  M.,  No.  10, 
page  291,  &c,  granted  and  conveyed  unto  the  said  Jacob  Stearly, 


302  Conveyancing  in   Pennsylvania. 

in  fee.    And  the  remaining  part  thereof  being  a  part  of  a. 
larger  lot  or  piece  of  ground  which  Robert  Ralston  and  others, 
Trustees  of  the  last  Will  and  Testament  of  Jonathan  Bayard 
Smith,  deceased,  by  Indenture  bearing  date  the  Eleventh  day  of 
May,  Anno  Domini  1826,  and  recorded  at  Philadelphia  in  Deed 
Book  G.  W.  R.,  No.  9,  page  356,  &c,  granted  and  conveyed  unto 
the  said  Jacob  Stearly  in  fee.     The  premises  fourth  described 
being  composes  as  follows :    viz ;  a  part  thereof  being  a  lot 
Twenty-feet   in    front   on   said   Hermitage   about   one   hundred 
and  twenty  feet — Jonathan  Bayard  Smith  and  Hannah  his  wife 
by  Indenture  bearing  date  the  first  day  of  January  Anno  Domini 
1795,  and  recorded  at  Philadelphia  in  Deed  Book  E.  T.,  No.  16, 
page  368,  &c,  granted  and  conveyed  unto  Richard  Limehouse  in 
fee.     Reserving  thereout  unto  the  said  Jonathan  Bayard  Smith 
his  Heirs  and  Assigns  a  certain  yearly  ground  rent  or  sum  of 
Twenty  Spanish  milled  silver  dollars.     And  the  said  Richard 
Limehouse  and  Elizabeth  his  wife  by  Indenture  bearing  date  the 
sixth  day  of  January,  Anno  Domini  1806,  and  recorded  at  Phila- 
delphia in  Deed  Book  G.  W.  R.,  No.  9,  page  355,  &c,  granted  and 
conveyed  said  lot  unto  John  Harrison,  in  fee.     Subject  to  the 
payment  of  said  yearly  ground  rent  or  sum  of  Twenty  dollars. 
And  the   said  John  Harrison  by   Deed   Poll  bearing  date  the 
twenty-eighth  day  of  March,  Anno  Domini  1826,  and  recorded  at 
Philadelphia  in  Deed  Book  G.  W.  R.,  No.  9,  page  356,  &c,  granted 
and  conveyed  said  lot  unto  the  said  Jacob  Stearly  in  fee,  Sub- 
ject to  the  payment  of  said  yearly  ground  rent  or  sum  of  Twenty 
dollars.     And  Robert  Ralston  and  others  Trustees  of  the  last 
Will  and   Testament  of   the   said  Jonathan   Bayard   Smith   de- 
ceased, by  the  said  recited  Indenture  bearing  date  the  Eleventh 
day  of  May,  Anno  Domini  1826,  and  recorded  at  Philadelphia 
in  Deed  Book  G.  W.  R.,  No.  9,  page  356,  &c,  granted  and  con- 
veyed unto  the  said  Jacob  Stearly,  in  fee,  a  lot  of  ground  con- 
taining in  front  on  said  Hermitage  street  fifty-five  feet  six  inches 
and    extending   in    Depth    Westward    about    one    hundred    and 
twenty  feet  (which  lot  included  the  said  lot  conveyed  to  Richard 
Limehouse   as   above   recited)    together  with   all   and   singular 
the  buildings,  improvements,  ways,  alleys,  passages,  waters,  water 
courses,   rights,   liberties,   privileges,   hereditaments   and   appur- 
tenances whatsoever  thereunto  belonging  or  in  any  wise  apper- 
taining and  the  reversions,  remainders,  rents,  issues  and  profits 
thereof   and   also   all    the   estate,   right,   title   interest,   property 


Forms.  303 

claim  and  demand  whatsoever  of  them  the  said  Trustees  and 
of  the  said  Jonathan  Bayard  Smith  at  any  immediately  before 
the  time  of  his  decease  as  well  at  law  as  in  equity  of,  in  to  and  out 
of  the  same.  Whereby  the  said  yearly  ground  rent  or  sum  of 
Twenty  dollars  merged  and  became  extinguished  forever.  An- 
other portion  of  said  premises  fourth  described  being  a  part 
of  said  lot  of  Ground  conveyed  by  Robert  Ralston  and  others 
Trustees  to  said  Jacob  Stearly  in  fee,  as  above  recited.  And 
the  remaining  portion  of  said  premises  being  the  Southermost 
Two  feet  ten  inches  more  or  less  of  said  premises  although  not 
covered  by  the  dimensions  of  the  lot  conveyed  by  said  recited 
Deed  from  Robert  Ralston  and  others  Trustees  to  Jacob  Stearly 
in  fee,  was  included  within  the  boundary  of  said  Lot  of  ground 
contained  in  said  Deed  and  the  said  Jacob  Stearly  entered  into 
possession  by  virtue  thereof  and  held  actual,  adverse,  continued, 
visible,  notorious,  distinct,  and  hostile  possession  thereof  until 
the  time  of  his  decease,  being  a  period  of  more  than  Fifty  years. 
So  that  a  perfect  and  indefeasible  title  to  said  remaining  part 
of  said  premises  fourth  described  was  vested  in  said  Jacob  Stear- 
ly in  fee  simple,  at  the  time  of  his  decease  by  virtue  of  the 
Statute  of  Limitations  of  the  Commonwealth  of  Pennsylvania 
and  the  premises  fifth  described  being  composed  of  the  whole 
of  a  certain  lot  or  piece  of  ground  which  Andrew  J.  Grauel 
and  Amanda  M.  his  wife  and  Lafayette  Grauel  and  Phebe  his 
wife  by  Indenture  bearing  date  the  nineteenth  day  of  April, 
Anno  Domini  1870  and  recorded  at  Philadelphia  in  Deed  Book 
J.  A.  H.,  No.  25,  page  543,  &c,  granted  and  conveyed  unto  the 
said  Jacob  Stearly  in  fee  and  part  of  a  certain  lot  or  piece 
of  ground  which  Jonathan  Collom  and  Mary  his  wife  by  In- 
denture bearing  date  the  eighth  day  of  April,  Anno  Domini  183 1, 
and  recorded  at  Philadelphia  in  Deed  Book  A.  M.,  No.  10,  page 
291,  &c,  granted  and  conveyed  unto  the  said  Jacob  Stearly  in 
fee. 

Together  with  all  and  singular  the  buildings,  improvements, 
ways,  streets,  alleys,  passages,  water,  water  courses,  rights,  lib- 
erties privileges,  hereditaments  and  appurtenances  whatsoever 
unto  the  hereby  granted  premises  belonging  or  in  any  wise  ap- 
pertaining. And  the  reversions  and  remainders,  rents,  issues 
and  profits,  thereof  and  all  the  estate,  right,  title,  interest  prop- 
erty, claim  and  demand  whatsoever  of  them  the  said  parties  of 
the  first  part  and   second  part   hereto  and  of   the   said   Mary 


304  Conveyancing  in   Pennsylvania. 

Leath  Courtney  as  well  at  law  as  in  equity  of,  in  and  to  the  same 
and  every  part  thereof. 

To  have  and  to  hold  the  said  Lots  or  pieces  of  ground  above 
described  with  the  said  messuages  or  tenements  and  other  build- 
ings and  improvements  thereon  erected  hereditaments  and  prem- 
ises hereby  granted  or  mentioned  and  inteneded  so  to  be  with 
the  appurtenances  the  said  Peter  S.  Dildine  his  heirs  and  assigns. 
To  and  for  the  only  proper  use  and  behoof  of  the  said  Peter  S. 
Dildine,  his  heirs  and  assigns  forever.     And  Luther  G.  Smith 
and  John  Newton  for  themselves  respectively,  and  for  their  re- 
spective  wives    and   their   heirs,   executors   and    administrators 
and  the  said  Emma  E.  Stearly  and  Mary  S.  Rainer,  for  them- 
selves respectively  and  their  respective  heirs,  executors  and  ad- 
ministrators do  by  these  presents  covenant,  grant  and  agree  to 
and  with  the  said  Peter  S.  Dildine  his  heirs,  and  assigns,  that 
they  the  said  Luther  G.  Smith  and  Clara  V.  his  wife,  Emma  E. 
Stearly,  John  Newton  and  Ida  I.  his  wife  and  Mary  S.  Rainier, 
and  their  respective  heirs,  all  and  singular  the  hereditaments 
and  premises  hereinabove  described  and  granted  or  mentioned 
and  intended  so  to  be  with  the  appurtenances,  unto  the  said  Peter 
S.  Dildine  his  heirs  and  assigns,  against  them  the  said  Luther  G. 
Smith  and  Clara  V.  his  wife,  Emma  E.  Stearly,  John  Newton 
and  Ida  I.  his  wife  and  Mary  S.  Rainier,  and  their  respective 
heirs  and  against  all  and  any  other  person  or  persons  whomso- 
ever lawfully  claiming  or  to  claim  the  same  or  any  part  thereof 
by,  from,  or  under  them  or  any  of  them  shall  and  will  warrant 
and  forever  defend  And  the  said  "The  Fidelity  Insurance  Trust 
and  Safe  Deposit  Co.,"  guardian  as  aforesaid.     Doth  covenant, 
promise  and  agree  to  and  with  the  said  Peter  S.  Dildine,  his 
heirs  and  assigns  by  these  presents  that  It  the  said  The  Fidelity 
Insurance  Trust  and  Safe  Deposit  Co.,  Guardian  as  aforesaid 
hath  not  at  any  time  heretofore  made,  done,  suffered  or  com- 
mitted any  act,  matter  or  thing  in  deed  or  in  law  whereby  or  by 
means  whereof  the  premises  hereby  granted  or  any  part  thereof 
are  is  or  can  be  impeached,  charged  or  affected  in  title,  estate 
or  otherwise  howsoever. 

In  Witness  Whereof  the  said  parties  of  the  first  part  have 
hereunto  interchangeably  set  their  hands  and  seals,  and  the  said 
"The  Fidelity  Insurance  Trust  and  Safe  Deposit  Co.,"  guardian 
as  aforesaid  hath  hereunto  affixed  its  common  or  corporate  seal 
Dated  the  day  and  year  first  above  written. 


Forms. 


305 


Sealed  and  Delivered 
in  the  presence  of 

us 
Edwin  F.  Glenn, 
John  A.  SinER. 


> 


J 


As  to  the  Fidelity,  &c,  Co^ 
Guardians  &  C, 
R.  L.  Wright,  Jr., 

H.   H.   PlGOTT, 


Luther  G.   Smith  (Seal.) 

Clara   V.    Smith  (Seal.) 

Emma   E.    Stearly  (Seal.) 

John  Newton  (Seal.) 

Ida.   T.   Newton  (Seal.) 

Mary  S.  Rainier  (Seal.) 

Stephen   A.   Caldwell,  Pres. 
>  Attest.        R.  Patterson,  Sec. 
(Corporate  Seal.) 


Received  the  day  of  the  date  of  the  above  Indenture  of  the 
above  named  Peter  S.  Dildine  the  sum  of  Sixteen  thousand  dol- 
lars being  the  full  consideration  money  above  mentioned. 

Luther  G.   Smith 


Witnesses  at  Signing 
Edwin  F.  Glenn, 
John  A.  Siner. 


> 


As  to  the  Fidelity  and  Trust  Co. 
R.  T.  Wright,  Jr., 
H.  H.  Pigott, 


Clara  V.  Smith 
John  Newton 
Ida.  T.  Newton 
Emma  E.   Stearly 
Mary  S.  Rainier 

R.  Patterson,  Treas. 


On  the  sixteenth  day  of  December,  Anno  Domini  1884,  be- 
fore me  the  subscriber  a  Notary  Public  for  the  Commonwealth 
of  Pennsylvania  residing  in  the  City  of  Philadelphia  personally 
appeared  Luther  G.  Smith  and  Clara  V.  his  wife,  Emma  E. 
Stearly,  John  Newton  and  Ida  I.,  his  wife,  and  Mary  S.  Rainier, 
and  in  due  form  of  law  acknowledged  the  above  written  In- 
denture to  be  their  and  each  of  their  act  and  deed  and  desired 
the  same  might  be  recorded  as  such  and  the  said  Clara  V.  Smith 
and  Ida  I.  Newton  being  of  full  age  and  separate  and  apart  from 
their  said  husbands  by  me  thereon  privately  examined  and  the 
full  contents  of  the  above  deed  being  by  me  first  made  known  unto 
them  did  thereupon  declare  and  say  that  they  did  voluntarily 
and  of  their  own  free  will  and  accord,  sign,  seal,  and  as  their 
act  and  deed  deliver  the  above  written  Indenture ;  Deed  or 
Conveyance,  without  any  coersion  or  compulsion  of  their  said 
husbands. 


306  Conveyancing  in   Pennsylvania. 

Witness  my  hand  and  Notarial  seal,  the  day  and  year  afore- 
said. 

Edwin  F.  Glenn, 
(Seal.)  Notary  Public. 

On  the  eighteenth  day  of  December,  Anno  Domini  1884,  be- 
fore me  the  subscriber  a  Notary  Public  for  the  Commonwealth 
of  Pennsylvania  residing  in  the  City  of  Philadelphia  personally 
appeared  Robert  Patterson,  Secretary  of  the  above  named  The 
Fidelity  Insurance  Trust  and  Safe  Deposit  Co.,  who  being  duly 
affirmed  according  to  law  did  depose  and  say  that  he  was  present 
and  saw  Stephen  A.  Caldwell  as  President  of  the  said  Corpora- 
tion affix  the  seal  of  the  said  corporation  to  the  above  Indenture 
and  that  the  seal  set  and  affixed  to  the  said  Indenture  is  the  com- 
mon or  corporate  seal  of  the  said  "The  Fidelity  Insurance  Trust 
and  Safe  Deposit  Co.,"  and  that  the  said  Indenture  was  duly 
sealed  and  delivered  by  the  said  President  as  and  for  the  act  and 
deed  of  the  said  corporation,  for  the  purposes  therein  mentioned, 
and  that  the  name  of  this  deponent  and  of  the  said  Stephen  A. 
Caldwell,  President  aforesaid,  subscribed  to  the  said  Indenture 
in  attestation  of  the  due  execution  and  delivery  thereof  by  the 
said  "The  Fidelity  Insurance  Trust  and  Safe  Deposit  Co.,"  are 
of  their  own  proper  and  respective  handwritings. 
Affirmed  and  subscribed  before  me  this 
eighteenth  day  of  December,  Anno  Domini  1884. 

R.  T.  Wright,  Jr.,  R.  Patterson,  Sec. 

(Seal.)  Notary  Public. 

City  and  County  oe  Philadelphia,  ss: 

At  an  Orphans'  Court  for  the  City  and  County  aforesaid 
held  at  Philadelphia  on  the  twenty-ninth  day  of  November, 
A.  D.  1884,  the  said  The  Fidelity  Insurance  Trust  and  Safe 
Deposit  Co.,  Guardian  of  the  estate  of  Mary  Leath  Courtney, 
the  above  minor,  was  authorized  to  sell  the  said  minor's  one  full 
equal  and  undivided  fifth  part  or  share  of  and  in  the  Real  Estate 
in  the  Above  Indenture  described  to  Peter  S.  Dildine,  his  heirs, 
and  assigns  and  the  said  Guardian  was  authorized  and  directed 
to  make,  execute  and  deliver  or  join  with  the  other  owners  of  said 
Real  Estate  in  the  execution  and  delivery  of  all  and  every  deed 
or  deeds  or  other  assurances  in  the  law  necessary  to  vest  said 
minor's  undivided  fifth  part  or  share  in  said  Real  Estate  in  the 


Forms.  307 

said  Peter  S.  Dildine  in  fee  simple  and  the  said  Court  ordered 
and  decreed  that  the  said  minor's  undivided  interest  in  said  Real 
Estate  so  sold  be  and  remain  to  the  said  Peter  S.  Dildine  his 
heirs  and  assigns  firm  and  stable  forever,  and  the  said  guardian 
was  authorized  to  receive  and  receipt  for  the  purchase  money, 
security  to  be  entered  in  the  sum  of  Six  thousand  four  hundred 
dollars  and  the  bond  of  said  company  was  approved  as  such  se- 
curity which  security  has  been  duly  entered.  Witness  my  hand 
and  the  seal  of  the  said  Court  this  19th  day  of  December,  Anno 
Domini  1884. 

A.  J.  Fortin, 
(Seal.)  1st.  Asst.  Clerk. 

Recorded  in  the  office  for  Recording  of  Deeds  in  and  for  City 
and  County  of  Philadelphia  in  Deed  Book  J.  O.  D.,  No.  238,  Page 
528,  &c.  Witness  my  hand  and  seal  of  office  this  Twentieth  day 
of  December,  A.  D.  1884. 

John  O'Donnel, 

(Seal.)  Recorder  of  Deeds. 

236.     Sheriff's  Deed  *(New  Form  Under  Act  of  April  29,    1905.) 

Know  all  Men  by  these  Presents  that  I,  Joseph  Gilfillan, 
Sheriff  of  the  County  of  Philadelphia  in  the  State  of  Pennsyl- 
vania, for  and  in  consideration  of  the  sum  of  Fifteen  Hundred 
($1500.00)  dollars,  to  me  in  hand  paid,  do  hereby  grant  and 
convey  to  Anna  S.  Lanning,  widow,  of  the  City  of  Philadelphia. 

All  that  certain  lot  or  piece  of  ground  with  the  messuage  or 
tenement  thereon  erected  situate  on  the  East  side  of  T  Street 
at  the  distance  of  One  Hundred  and  forty  feet  Southward  from 
the  South  side  of  S  Street  in  the  Fiftieth  Ward  of  the  City  of 
Philadelphia,  containing  in  front  or  breadth  on  said  T  Street, 
Fourteen  feet  and  extending  of  that  width  in  length  or  depth 
Eastward  between  parallel  lines  at  right  angles  with  said  T 
Street  Fifty-seven  feet  three  inches.  Bounded  Westivard  by 
said  T  Street,  Southward  by  ground  now  or  late  of  John  Joseph 
Alter,  Northward  by  ground  now  or  late  of  Thomas  Long, 
and  Eastward  by  a  certain  four  feet  wide  alley  leading  South- 
ward into  X  Street,  and  connecting  with  another  four  feet  wide 

*This  is  from  the  regular  printed  form,  which  can  be  purchased  at  any 
legal  stationer's.  The  words  in  italics  are  to  be  filled  in  by  the  convey- 
ancer. 


308  Conveyancing  in   Pennsylvania. 

alley  leading  Westward  into  said  T  Street.  Being  the  same 
premises  which  Richard  Dint  el  and  Maggie  his  wife,  by  In- 
denture bearing  date  the  Ninth  day  of  January  1907  and  re- 
corded in  the  office  for  the  Recording  of  Deeds  in  and  for  the 
City  and  County  of  Philadelphia  in  Deed  Book  W.  S.  V.  No. 
767,  Page  171,  &c,  granted  and  conveyed  unto  the  said  Martin 
Seeeman  in  fee.  Together  with  the  free  use  and  privilege  of 
the  aforesaid  two  several  four  feet  wide  alleys  at  all  times 
hereafter  forever,  And  the  same  having  been  sold  by  me  to  the 
said  grantee,  on  the  first  day  of  August  Anno  Domini  one  thou- 
sand nine  hundred  and  ten  after  due  advertisement,,  according  to 
law,  under  and  by  virtue  of  a  writ  of  Levari  Facias  issued  on 
the  sixth  day  of  July  Anno  Domini'  One  Thousand  nine  hundred 
and  ten,  1910,  out  of  the  Court  of  Common  Pleas,  No.  1,  as  of 
March  Term,  one  thousand  nine  hundred  and  ten,  (1910)  Num- 
ber 3809,  at  the  suit  of  Anna  S.  Lanning,  Assignee  of  Edward 
H.  Stanton,  Mortgagee,  against  Martin  Seleman,  Mortgagor 
and  Real  Owner. 

In  witness  whereof,  I  have  hereunto  affixed  my  signature, 
this  tenth  day  of  August  Anno  Domini  one  thousand  nine  hun- 
dred and  ten,  (1910). 

Joseph  Giefieean. 

Commonwealth  of  Pennsylvania,  ss : 

Before  the  undersigned,  Prothonotary  of  the  Common  Pleas 
Court  of  Phila.  personally  appeared  Joseph  Gilfilean  Sheriff 
of  Philadelphia  County  aforesaid,  and  in  due  form  of  law 
declared  that  the  facts  set  forth  in  the  foregoing  deed  are  true, 
and  that  he  acknowledged  the  same  in  order  that  said  deed 
might  be  recorded. 

Witness  my  hand  and  seal  of  said  court,  this  tenth  day  of 
August  Anno  Domini  one  thousand  nine  hundred  and  ten, 
(1910). 

Craig  BiddeE, 
Prothonotary. 
per  Jas.  W.  Fletcher, 

Dep.  Prothy. 

237.     Deed,  Individual,  to  Trustees  of  an  Unincorporated  Church. 

This  Indenture,  Made  the  ninth  day  of  September  in  the  year 

of  our  Lord  one  thousand  nine  hundred  and  eleven,  (1911)  Be- 


Forms.  309 

tween  M.  G.,  of  the  city  of  Philadelphia,  State  of  Pennsylvania, 
and  S.,  his  wife  (hereinafter  called  the  grantors),  of  the  one  part 
and  /.  D.,  V.  L.  and  S.  K.,  all  of  the  said  City  and  State,  Trustees 
for  St.  Michael's  Orothodox  Church,{ hereinafter  called  the  gran- 
tees), of  the  other  part,  Witnesseth,  That  the  said  grantors  for 
and  in  consideration  of  the  sum  of  One  ($1.00)  Dollar,  lawful 
money  of  the  United  States  of  America,  unto  them  well  and 
truly  paid  by  the  said  grantee  at  or  before  the  sealing  and  de- 
livery hereof,  the  receipt  whereof  is  hereby  acknowledged,  have 
granted,  bargained  and  sold,  released  and  confirmed,  and  by 
these  presents  do  grant,  bargain  and  sell,  release  and  confirm 
unto  the  said  grantees  their  heirs  and  assigns,  All  that  certain 
lot  or  piece  of  ground  with  the  buildings  and  improvements 
thereon  erected,  described  according  to  a  plan  and  survey  there- 
of made  by  F.  B.  Surveyor  and  Regulator  of  the  Fourth  Survey 
District  of  the  City  of  Philadelphia,  as  follows,  to  wit:  Begin- 
ning at  a  point  on  the  East  side  of  Sixth  Street,  {fifty  feet  wide) 
at  a  distance  of  Two  Hundred  and  nineteen  (219')  feet  one 
and  one-quarter  (i%")  Southzvard  from  the  Southerly  line  of 
Green  Street  {fifty  feet  wide)  in  the  Twelfth  Ward  of  the  City 
of  Philadelphia.  Containing  in  front  or  breadth  on  said  Sixth 
Street  Eighteen  feet  and  extending  of  that  width  in  length  or 
depth  Eastward  betzveen  parallel  lines  at  right  angles  to  said 
Sixth  Street  on  the  North  line  thereof  partly  through  the  center 
of  a  two  feet  six  inches  zvide  alley,  One  Hundred  and  Nineteen 
feet,  six  and  three-eighths  inches,  (ii9'-6%")  to  a  point,  in  a 
line  drawn  parallel  with  Randolph  Street  and  at  a  distance  of 
Seventy-five  feet  (75')  Westward  therefrom,  and  on  the  South 
line  thereof  One  hundred  and  Nineteen  feet  two  and  three- 
eighths  inches,  {ug'-2}i")  to  a  point  in  said  line.  Being  the 
same  premises  zvhich  C.  K.,  of  the  City  of  Philadelphia  and  C. 
E.  K.,  his  wife,  by  Indenture  bearing  date  the  lyth  day  of  Janu- 
ary, A.  D.  1908,  and  recorded  hi  the  office  for  the  Recording  of 
Deeds  in  and  for  the  County  of  Philadelphia,  in  Deed  Book  W . 
S.  V.,  No.  940,  Page  449,  &c,  granted  and  conveyed  unto  the  said 
M.  G.  in  fee.  Together  with  all  and  singular  the  buildings,  im- 
provements, ways,  streets,  alleys,  passages,  waters,  water-courses, 
rights,  liberties,  privileges,  hereditaments  and  appurtenances, 
whatsoever  unto  the  hereby  granted  premises  belonging,  or  in  any 
wise  appertaining,  and  the  revisions  and  remainders,  rents,  issues 


310  Conveyancing  in   Pennsylvania. 

and  profits  thereof ;  and  all  the  estate,  right,  title,  interest,  prop- 
erty, claim  and  demand  whatsoever  of  them  the  said  grantors  as 
well  at  law  as  in  equity,  of,  in,  and  to  the  same.    To  have  and  to 
hold  the  said  lot  or  piece  of  ground  above  described  with  the 
buildings  and  improvements  thereon  erected,  hereditaments  and 
premises  hereby  granted,  or  mentioned  and  intended  so  to  be, 
with  the  appurtances,  unto  the  said  grantees  their  heirs  and  as- 
signs, to  and  for  the  only  proper  use  and  behoof  of  the  said 
grantees    their    heirs    and    assigns    forever.      In    trust    never- 
theless  for   the   uses   and   purposes    of    St.    Michael's    Or- 
thodox Church  with  power  to  the  said  J.  D.,  V.  L.  and  S.  K. 
trustees,  to  sell  and  convey  in  fee  simple  and  to  mortgage  the 
whole  or  any  part  of  the  aforesaid  premises  and  appurtenances  to 
any  person  or  persons  and  for  such  sum  or  sums  of  money  as 
the  said  congregation  of  St.  Michael's  Orthodox  Church  shall, 
by  a  majority  vote  at  a  meeting  held  for  the  purpose  of  consid- 
ering that  question,  may  appoint  and  direct.    And  the  said  M.  G. 
and  S.,  his  wife,  grantors,  for  themselves,  their  heirs,  executors 
and  administrators,  do  covenant,  promise  and  agree,  to  and  with 
the  said  grantee.?,  their  heirs  and  assigns,  by  these  presents,  that 
they,  the  said  grantors,  their  heirs  all  and  singular  the  heredita- 
ments and  premises  hereby  granted  or  mentioned  and  intended 
so  to  be,  with  the  appurtenances,  unto  the  said  grantee.?,  their 
heirs  and  assigns,  against  them,  the  said  grantors,  their  heirs  and 
against  all  and  every  person  and  persons  whomsoever  lawfully 
claiming  or  to  claim  the  same  or  any  part  thereof,  by,  from  or 
under  him,  her,  them,  or  any  of  them,  shall  and  will  warrant 
and  forever  defend. 

In  Witness  Whereof,  The  parti?.?  of  the  first  part  have  here- 
unto set  their  hand.?  and  seal.?,  dated  the  day  and  year  first  above 
written. 

Sealed  and  Delivered 
in  the  presence  of  us : 

Robt.Roe,        1  M.  G.  (Seal.) 

John  Doe.  ]  S.  G.  (Seal.) 

Received  on  the  day  of  the  date  of  the  above  indenture,  of  the 
above-named  grantee.?  the  sum  of  $1.00  being  the  full  considera- 
tion above  mentioned. 

M.  G. 


Forms.  311 

On  the  ninth  day  of  September,  Anno  Domini  191 1,  before 
me,  the  subscriber,  a  notary  public  for  the  Commonwealth  of 
Pennsylvania,  residing  in  the  City  of  Philadelphia,  personally 
appeared  the  above-named  M.  G.  and  S.,  his  zvife,  and  in  due 
form  of  law  acknowledged  the  above  indenture  to  be  their  act 
and  deed,  and  desired  the  same  might  be  recorded  as  such. 

Witness  my  hand  and  notarial  seal  the  day  and  year  aforesaid. 

Robt.  Roe, 
Notary  Public. 
Commission  Expires,  Jan.  23,  1913. 

238.     Voluntary  Deed  of  Partition  by  Tenants  in  Common. 

This  Indenture,  Made  the  twenty-fourth  day  of  November, 
A.  D.  one  thousand  nine  hundred  and  nine,  between  William 
Brown,  of  Philadelphia,  of  the  one  part,  and  Thomas  Brown, 
of  Philadelphia,  of  the  other  part :  Whereas,  the  said  William 
Brown  and  Thomas  Brown  now  stand  seised  in  fee  simple,  as 
tenants  in  common,  of  and  in  a  certain  tract  or  parcel  of  land, 
situate,  lying,  and  being  in,  &c,  containing,  &c.  (here  describe  the 
whole  tract).  Now  this  indenture  witnesseth,  that  the  parties 
to  this  indenture  have  agreed  to  make,  and  by  these  presents  do 
make,  a  full,  just,  equal,  perfect,  and  absolute  partition  and  divi- 
sion between  them,  of  and  in  the  aforesaid  tract  of  land,  ac- 
cording to  their  respective  shares  and  interests  therein,  in  man- 
ner following,  that  is  to  say  that  the  said  William  Brown  and 
his  heirs  shall  have  all  that  piece  or  allotment  of  land,  part  of 
the  said  tract,  beginning  (here  describe  the  land),  containing, 
&c,  together  with  the  messuages,  edifices,  buildings,  and  improve- 
ments on  the  said  described  piece  of  land  erected,  standing,  or 
being,  and  all  the  rights,  liberties,  privileges,  hereditaments,  and 
appurtenances  whatsoever,  thereunto  belonging  or  in  any  wise 
appertaining,  and  the  reversions  and  remainders,  rents,  issues, 
and  profits  thereof.  To  have  and  to  hold  the  same  unto  the  said 
William  Brown,  his  heirs  and  assigns,  forever,  in  severalty,  as 
his  and  their  full  part,  share,  and  dividend,  of  and  in  all  and 
singular  the  premises:  And  the  said  Thomas  Jones  doth  by 
these  presents,  for  himself  and  his  heirs,  give,  grant,  allot,  as- 
sign, set  over,  release,  and  confirm,  unto  the  said  William 
Brown,  and  to  his  heirs  and  assigns,  forever,  the  said  described 
price  or  allotment  of  land,  with  the  appurtenances:  To  have 
and  to  hold  to  him,  the  said  William  Brown,  his  heirs  and 


312  Conveyancing  in   Pennsylvania. 

assigns,  to  the  only  proper  use  and  behoof  of  him,  the  said  Wil- 
liam Brown,  his  heirs  and  assigns,  forever,  in  severalty:    And 
the  said  Thomas  Brown,  for  himself,  his  heirs,  executors,  and 
administrators,  doth  covenant  to  and  with  the   said  William 
Brown,  his  heirs  and  assigns,  and  every  of  them,  by  these  pres- 
ents, that  he,  the  said  William  Brown,  his  heirs  and  assigns, 
shall,  or  lawfully  may,  from  time  to  time,  and  at  all  times  here- 
after, forever,  freely,  peaceably,  and  quietly  have,  hold,  occupy, 
possess,  and  enjoy  the  said  first  described  piece  or  allotment  of 
land,  containing,  &c,  with  the  appurtenances,  and  receive  and 
take  the  rents,  issues,  and  profits  thereof,  without  the  let,  suit, 
trouble,   molestation,   interruption,   or   denial   of   him,   the   said 
Thomas  Brown,  his  heirs  and  assigns,  or  any  other  person  or 
persons  whatsoever,  lawfully  claiming,  or  to  claim,  by,  from,  or 
under  him,  them,  or  any  of  them,  or  by  or  with  his,  their,  or  any 
of  their  acts,  means,  consent,  privity,  or  procurement.    And  that 
the  said  Thomas  Brown  and  his  heirs  shall  have  that  piece  or 
allotment  of  land   (residue  of  the  said  tract),  beginning  (here 
describe  the  land),  containing,  &c,  together  with  the  messuages, 
edifices,  buildings,  and  improvements  on  the  said  described  piece 
of  land  erected,  standing,  or  being,  and  all  the  rights,  liberties, 
privileges,  hereditaments,  and  appurtenances  whatsoever  there- 
unto belonging,  or  in  any  wise  appertaining,  and  the  reversions 
and  remainders,  rents,  issues,  and  profits  thereof:  to  hold  and 
enjoy  the  same  unto  the  said  Thomas  Brown,  his  heirs  and  as- 
signs, forever,  in  severalty,  as  his  and  their  full  part,  share,  and 
dividend  of,  and  in  all  and  singular  the  premises :    And  the  said 
William  Brown  doth,  by  these  presents,  for  himself  and  his 
heirs,  give,  grant,  allot,  assign,  set  over,  release,  and  confirm, 
unto  the  said  Thomas  Brown,  and  to  his  heirs  and  assigns,  for- 
ever, the  said  last  described  piece  or  allotment  of  land,  with  the 
appurtenances:    To  have  and  to  hold  to  him,  the  said  Thomas 
Brown,  his  heirs  and  assigns,  to  the  only  proper  use  and  behoof 
of  the  said  Thomas  Brown,  his  heirs  and  assigns,  in  severalty, 
forever :    And  the  said  William  Brown,  for  himself,  his  heirs, 
executors,  and  administrators,  doth  covenant  to  and  with  the  said 
Thomas  Brown,  his  heirs  and  assigns,  and  every  of  them,  by 
these  presents,  that  he,  the  said  Thomas  Brown,  his  heirs  and 
assigns,  shall  or  lawfully  may,  from  time  to  time,  and  at  all  times 
hereafter,    forever,   freely,   peaceably,   and   quietly,   have,   hold, 
occupy,  possess,  and  enjoy  the  said  last-described  piece  or  allot- 


Forms.  3j3 

ment  of  land,  containing,  &c,  with  the  appurtenances,  and  re- 
ceive and  take  the  rents,  issues,  and  profits  thereof,  without  the 
let,  suit  trouble,  molestation,  interruption,  or  denial  of  him,  the 
said  William  Brown,  his  heirs  or  assigns,  or  of  any  other  per- 
son or  persons  whatsoever,  lawfully  claiming,  or  to  claim,  by, 
from,  or  under  him,  them,  or  any  of  them,  or  by  or  with  his, 
their,  or  any  of  their  acts,  means,  consent,  privity,  or  procure- 
ment. 

In  Witness  Whereof,  The  said  parties  have  hereunto  set 
their  hands  and  seals  the  day  and  year  aforesaid. 
Signed,  sealed  and  delivered    "^ 

in  the  presence  of  I      Thomas  Brown.        (Seal.) 

Robert  Roe,  [     William  Brown,      (Seal.) 

John  Doe.  J 

State  of  Pennsylvania,     ) 
County  of  Philadelphia,  j 

On  the  twenty-fourth  day  of  November,  A.  D.  1909,  before 
me,  the  subscriber,  a  notary  public  for  the  Commonwealth  of 
Pennsylvania,  residing  in  Philadelphia,  personally  appeared  the 
above-named  William  Brown  and  Thomas  Brown,  who  in  due 
form  of  law  acknowledged  the  foregoing  indenture  to  be  their 
and  each  of  their  act  and  deed  to  the  intent  that  the  same  might 
be  recorded  as  such. 

John  Doe, 
Notary  Public. 
Commission  Expires,  first  day  of  July,  1912. 

239.     Master's  Deed  in  Partition  in  Equity. 

Whereas,  On  the  21st  day  of  January,  A.  D.  1912,  in  the  Court 
of  Common  Pleas  No.  1,  of  Philadelphia  county,  in  the  Common- 
wealth of  Pennsylvania,  sitting  in  equity  of  Dec.  Term,  191 1,  to 
number  921,  a  bill  of  complaint  was  filed  by  Maria  Bloom,  plain- 
tiff, against  Otto  Bloom  and  Anna  Bloom,  defendants,  setting 
forth  (inter  alia)  that  the  parties  therein  named  as  plaintiff 
and  defendants,  together  and  undivided  did  hold  a  certain  tract 
of  land  situate  in  said  county,  and  bounded  and  described  as  fol- 
lows (here  set  out  the  description).  And  praying  that  partition 
thereof  be  made  among  said  parties.  Whereupon  the  cause  was 
so  proceeded  in  that  partition  was  decreed  and  the  cause  referred 
to  Andrew  Long,  Esq.,  as  master,  to  make  partition  of  the  land, 


314  Conveyancing  in   Pennsylvania. 

&c,  and  the  master  having  made  report  that  the  land  could  not 
be  divided  without  prejudice,  &c,  and  having  valued,  and  ap- 
praised the  same,  and  the  parties  having  refused  to  accept  the 
land  at  the  valuation,  the  court  did,  on  the  27th  day  of  May,  A. 
D.  191 2,  order  that  the  master  make  sale  thereof  at  public  auc- 
tion. Pursuant  to  which  order  the  master  did,  on  the  fifteenth 
day  of  June,  A.  D.  1912,  sell  the  land  to  Alfred  Cameron  for  the 
sum  of  ten  thousand  ($10,000)  dollars ;  which  sale  on  the  re- 
turn day  thereto  made,  was  on  the  first  day  of  July,  A.  D.  191 2, 
approved  and  confirmed  by  the  court  and  adjudged  to  remain 
firm  and  stable  forever. 

Now  this  Indenture  Witnesseth,  That  Andrew  Lang,  Esq., 
master  of  virtue  of  the  power  vested  in  him  by  the  order  afore- 
said, and  in  the  consideration  of  the  sum  of  ten  thousand 
($10,000)  dollars,  to  him  in  hand  paid,  the  receipt  whereof  is 
hereby  acknowledged,  hath  granted,  bargained  and  sold,  and  by 
these  presents  doth  grant,  bargain  and  sell  unto  the  said  Alfred 
Cameron,  his  heirs  and  assigns,  the  tract  of  land  hereinbefore  de- 
scribed, together  with  all  and  singular  the  rights,  privileges,  here- 
ditaments and  appurtenances  thereunto,  belonging  or  in  any  wise 
appertaining :  To  have  and  to  hold  the  same  for  such  estate  as 
the  parties  named  in  said  bill  of  complaint  as  plaintiff  and  de- 
fendants had  therein  at  the  time  of  the  filing  of  said  bill. 

In  witness   whereof  the   said  master   hath  hereunto   set   his 

hand  and  seal,  this  tenth  day  of  July,  A.  D.  1912. 

Andrew  Lang.     (Seal.) 

Master. 

State  of  Pennsylvania, 

ss ' 
City  and  County  of  Philadelphia, 

On  this  tenth  day  of  July,  A.  D.  1912,  before  me,  the  sub- 
scriber, a  notary  public  in  and  for  the  Commonwealth  of  Penn- 
sylvania, residing  in  said  county,  personally  appeared  Andrew 
Lang,  Esq.,  named  as  master  in  the  foregoing  indenture,  and 
acknowledged  the  said  indenture  to  be  his  act  and  deed,  as  mas- 
ter, in  pursuance  of  the  decree  set  forth  in  said  indenture  for  the 
sale  of  the  land  therein  described. 

Witness  my  hand  and  seal  this  tenth  day  of  July,  A.  D.  1912. 

William  Blinn, 
Notary  Public.     (Seal.) 
Commission  Expires  Mar.  1,  1913. 


Forms.  3x5 

240.  Administrator's  Deed  for  Lands  Sold  by  Order  of  Orphans' 
Court  in  Partition. 
This  indenture,  made  the  twenty-first  day  of  August,  in  the 
year  of  our  Lord  one  thousand  nine  hundred  and  ten,  between 
John  Green  and  Earl  White,  administrators  of  all  and  sin- 
gular the  goods  and  chattels,  rights  and  credits  which  were  of 
John  Jones,  late  of  Philadelphia,  farmer,  deceased,  of  the  one 
part,  and  John  Black,  of  Philadelphia,  gentleman,  of  the  other 
part :  Whereas,  The  said  John  Jones  was,  in  his  lifetime,  law- 
fully seised  in  his  demesne,  as  of  fee,  of  and  in  a  certain  lot  or 
tract  of  land,  situated  in  Philadelphia,  and  bounded  and  de- 
scribed as  follows,  that  is  to  say,  beginning  at  (here  describe  the 
land),  containing  ,  with  the  appurtenances,  and  being 

so  thereof  seised  as  aforesaid,  died  intestate;  and  whereas  at  an 
orphans'  court,  held  at  Philadelphia,  in  and  for  the  County  of 
Philadelphia  aforesaid,  the  day  of  ,  A.  D.  19     ,  upon 

the  petition  of  Harry  Jones,  eldest  son  and  heir-at-law  (or  as 
the  case  may  be)  of  the  said  John  Jones,  praying  the  court  to 
award  an  inquest  to  make  partition  of  the  said  real  estate  of  the 
said  intestate,  in  the  said  petition  mentioned,  to  and  among  his 
children  and  representatives,  in  such  manner  and  in  such  propor- 
tions as  by  the  laws  of  Pennsylvania  is  directed  and  appointed, 
if  such  partition  could  be  made  without  prejudice  to  or  spoiling 
the  whole,  otherwise  to  value  and  appraise  the  same,  the  said 
inquest  was  awarded  by  the  court,  according  to  the  prayer  of  the 
said  petitioner ;  whereupon  a  writ  of  partition  or  valuation  issued 
out  of  the  said  court,  bearing  test  the  day  of  ,  A. 

D.  19  ,  to  the  sheriff  of  the  said  county  directed,  commanding 
him  to  summon  an  inquest  to  make  partition  of  the  said  real  es- 
tate to  and  among  the  children  and  representatives  of  the  said 
intestate  according  to  law,  if  such  partition  could  be  thereof 
made  without  prejudice  to  and  spoiling  the  whole;  but  if  such 
partition  could  not  be  made  thereof  as  aforesaid,  then  to  value  and 
appraise  the  same;  and  that  the  partition  or  valuation  so  made 
he  should  distinctly  and  openly  have  before  the  judges  of  the 
said  court,  at   Philadelphia,  the  day  of  .   A.   D. 

19  .  At  which  day,  before  the  judges  aforesaid,  the  sheriff  of 
the  said  county,  to  wit,  Charles  Raymond,  Esq.,  made  return  of 
the  said  writ,  with  a  schedule  thereunto  annexed,  by  which 
schedule  or  inquisition,  under  the  hand  and  seal  as  well  of  the 


316  Conveyancing  in   Pennsylvania. 

said  sheriff  as  of  the  inquest  therein  named,  it  appears,  by  the 
oaths  and  affirmation  of  the  said  inquest,  that  the  real  estate  in 
the  said  writ  mentioned  could  not  be  parted  and  divided  to  and 
among  the  parties  therein  named  without  prejudice  to  or  spoiling 
the  whole  thereof;  and  therefore  the  inquisition  aforesaid,  upon 
their  oaths  or  affirmations  aforesaid,  had  valued  and  appraised 
the  same  at  the  sum  of  dollars,  which  return  and  val- 

uation were,  on  motion,  confirmed  by  the  court.  And  whereas 
all  the  heirs  and  legal  representatives  of  the  said  John  Jones 
having  severally  and  respectively  refused  to  take  the  said  lot  or 
tract  of  land  at  the  valuation  aforesaid,  the  court  did,  upon  the 
application  of  the  said  Harry  Jones  (or  other  party,  as  the  case- 
may  be),  grant  a  rule  upon  all  the  heirs  and  legal  representatives 
of  the  said  intestate  to  show  cause,  at  an  Orphans'  Court  to  be  held 
at  Philadelphia,  in  the  County  of  Philadelphia,  the  day 

of  ,  next  ensuing,  why  the  said  real  estate  should  not  be 

sold  according  to  the  act  of  general  assembly  in  such  case  made 
and  provided;  at  which  said  time  and  place,  legal  notice  of  the 
aforesaid  rule  being  proved  to  have  been  duly  given  to  all  the 
heirs  and  legal  representatives  of  the  said  intestate,  and  no  cause 
being  shown  why  the  said  real  estate  should  not  be  sold  as  afore- 
said, the  court  did  then  and  there  make  an  order  commanding  the 
said  John  Green  and  Earl  White,  administrators  as  aforesaid, 
to  expose  the  aforesaid  lot  or  tract  of  land  of  the  said  intestate 
to  public  sale,  on  the  premises  (or  as  the  case  may  be),  upon 
the  terms  in  the  said  order  directed.  In  pursuance  whereof,  the 
said  administrators,  having  first  given  sufficient  security,  accord- 
ing to  law,  for  the  faithful  execution  of  the  power  committed  to 
them  did,  in  accordance  with  the  directions  of  the  said  order, 
expose  the  premises  therein  mentioned  to  sale  by  public  vendue, 
and  sold  the  same  to  the  said  John  Black,  at  and  for  the  sum  of 
dollars,  he  being  the  highest  bidder,  and  that  the  high- 
est and  best  price  bidden  for  the  same,  which  sale,  on  return 
thereof  made  to  the  judges  of  the  same  court,  was,  on  the 
day  of  ,  last  past,  confirmed;  and  it  was  considered  and 

adjudged  by  the  said  court  that  the  said  lot  or  tract  of  land,  with 
the  appurtenances  so  sold  as  aforesaid,  should  be  transferred  and 
vested  in  the  said  John  Black,  as  fully  as  the  said  John  Jones 
held  the  same  at  his  decease,  subject  and  liable  to  the  payment  of 
the  purchase  money,  according  to  the  terms  prescribed  in  the 


Forms.  317 

said  order,  as  by  the  records  and  proceedings  of  the  same  court, 
remaining  at  aforesaid,  relation  thereunto  being  had, 

will  more  fully  and  at  large  appear.  Now  this  indenture  witness- 
ed!, that  the  said  John  Green  and  Earl  White,  administra- 
tors, as  aforesaid,  for  and  in  consideration  of  the  said  sum  of 
dollars,  to  them  in  hand  paid  by  the  said  John  Black, 
at  and  before  the  ensealing  and  delivery  hereof,  the  receipt  and 
payment  whereof  they  do  hereby  acknowledge,  have  granted, 
bargained,  sold,  aliened,  released,  and  confirmed,  and  by  these 
presents  (by  virtue  of  the  powers  and  authorities  to  them 
given  by  the  aforesaid  order  of  orphans'  court,  and  pursuant 
to  the  directions  thereof)  do  grant,  bargain,  sell,  alien,  release, 
and  confirm  unto  the  said  John  Black,  his  heirs  and  assigns,  all 
that  the  above-mentioned  and  described  lot  or  tract  of  land, 
with  the  appurtenances.  Together  with  all  and  singular  the 
rights,  liberties,  privileges,  hereditaments,  and  appurtenances 
whatsoever,  thereunto  belonging  or  in  any  wise  appertaining, 
and  the  reversions  and  remainders,  rents,  issues,  and  profits 
thereof;  and  also  all  the  estate,  right,  title,  interest,  property, 
claim,  and  demand  whatsoever  of  the  said  John  Jones  in  his 
lifetime,  at  and  immediately  before  the  time  of  his  decease,  of, 
in,  to,  or  out  of  the  same. 

To  have  and  to  hold  the  said  lot  or  tract  of  land,  heredita- 
ments, and  premises,  hereby  granted,  or  mentioned,  or  intended 
so  to  be,  with  the  appurtenances,  unto  the  said  John  Black,  his 
heirs  and  assigns,  to  the  only  proper  use,  benefit,  and  behoof  of 
the  said  John  Black,  his  heirs  and  assigns,  forever.  (And  the 
said  John  Green  and  Earl  White  do  severally,  but  not  jointly, 
or  the  one  for  the  other,  or  for  the  act  or  deed  of  the  other,  but 
each  for  his  own  act  only,  covenant,  promise  and  agree,  to  and 
with  the  said  John  Black,  his  heirs  and  assigns,  by  these  pres- 
ents, that  they,  the  said  John  Green  and  Earl  White  have  not, 
nor  hath  either  of  them  done,  committed,  or  wittingly,  or  willing- 
ly suffered  to  be  done  or  committed  any  act,  matter,  or  thing 
whatsoever,  whereby  the  premises  aforesaid,  or  any  part  thereof, 
is,  are,  or  shall  or  may  be  impeached,  charged,  or  encumbered 
in  title,  charge,  or  estate,  or  otherwise  howsoever.) 

In  Testimony  Whereoe,  The  said  parties  have  hereunto  set 
their  hands  and  seals  the  day  and  year  first  above  written. 


318  Conveyancing   in   Pennsylvania. 


Signed,  sealed  and  delivered 
in  the  presence  of 
William  Sloan, 
Jacob  Rooney. 


John  Green.      (Seal.) 
Earl   White.     (Seal.) 


*Add  administrator's  acknowledgment  as  in  form,  Par.  209,  page  269. 
Covenant  in  brackets  is  not  necessary  and  may  be  omitted. 

241.     Sheriff's  Deed  in  Partition  by  a  Common  Pleas  Court. 

I,  A.  T.,  high  sheriff  in  and  for  the  City  and  County  of  Phila- 
delphia, in  the  State  of  Pennsylvania,  to  all  to  whom  these  pres- 
ents shall  come,  send  greetings :  Whereas,  a  certain  writ  of 
breve  de  partitione  facienda,  lately  issued  out  of  the  Common 
Pleas  Court  No.  3,  for  the  City  and  County  of  Philadelphia,  test- 
ed at  Philadelphia  the  first  day  of  December,  Anno  Domini,  1902, 
and  to  me  directed  at  the  suit  of  W.  W.  S.,  in  order  to  have  inter 
alia  the  three-story  brick  messuage  or  tenement  and  lot  or  piece 
of  ground  hereinafter  particularly  described,  and  granted,  parted, 
and  divided  between  him,  the  said  W.  W.  S.,  and  G.  S.  and  M.  S., 
minor  children  by  their  guardian,  J.  J.  M.,  to  wit,  Number  Two 
(No.  2),  all  that  certain  (here  insert  the  description  of  the  prem- 
ises). And  whereas,  I  returned  to  the  Judges  of  the  Common 
Pleas  Court  No.  3,  for  the  City  and  County  of  Philadelphia,  that 
in  obedience  to  the  said  writ  I  had  gone  with  twelve  honest  and 
lawful  men  of  my  bailiwick  to  the  tenements  and  premises  in  the 
said  writ  described  with  the  appurtenances,  the  parties  to  said 
writ  having  been  warned  and  as  many  as  chose  to  be  there  being 
present,  which  twelve  honest  and  lawful  men,  upon  their  oaths 
and  affirmations,  respectively  did  say  that  the  said  lands  and 
tenements  could  not  be  divided  without  prejudice  to  or  spoiling 
the  whole,  and  therefore  they  had  valued  and  appraised  the  said 
lands  and  tenements  in  the  said  writ  described,  as  follows,  to  wit : 
Number  One  (No.  1),  at  five  thousand  five  hundred  dollars,  and 
Number  Two  (No.  2)  at  two  thousand  dollars,  subject  to  the 
said  ground  rent  (or  as  the  case  may  be)  mentioned  in  the 
above-recited  writ,  lawful  money  of  Pennsylvania :  And  where- 
as, the  said  parties  declined  and  refused  to  take  the  lands  and 
tenements  in  the  said  writ  described  with  the  appurtenances,  at 
the  appraised  value,  as  appears  of  record  in  the  said  court : 
Whereupon  the  return  to  the  said  writ  of  partitione  facienda  was 
approved  of  by  the  Judges  aforesaid,  demandant  aforesaid  prayed 
that  the  premises  be  sold  agreeably  to  the  act  of  assembly  in 


Forms.  319 

such  case  made  and  provided,  and  it  was  accordingly  ordered 
by  the  said  Judges  that  the  lands  and  tenements  in  the  said  writ 
described,  with  the  appurtenances,  be  sold  at  public  vendue, 
agreeably  to  the  act  of  assembly,  after  notice  and  advertise- 
ments twenty  days  previous  thereto.  Wherefore,  by  a  certain 
order  of  sale  issued  out  of  the  said  court,  to  me  directed,  bearing 
teste  the  first  day  of  February,  Anno  Domini  1903,  I  was  com- 
manded that  the  lands  and  tenements  in  the  said  writ  described, 
with  the  appurtenances,  I  should  expose  to  sale  at  public  vendue, 
having  first  given  due,  fair,  and  legal  notice  of  the  time  and 
place  of  sale  thereof,  agreeably  to  the  directions  of  the  said 
act  of  assembly,  and  the  order  of  court  thereon,  and  the  money 
arising  from  the  said  sale  or  sufficient  sureties  therefor,  to  the 
satisfaction  of  all  parties  concerned,  I  should  bring  into  the  said 
Court  to  be  held  at  Philadelphia  the  Monday  of  March  then  next, 
to  be  distributed  and  paid  by  order  of  said  Court  to  and  among 
the  several  parties  entitled  to  receive  the  same  in  lieu  of  their 
respective  parts  and  purparts  of  the  premises  in  the  said  writ 
described,  with  the  appurtenances,  according  to  their  just  rights 
and  proportion,  and  to  abide  such  further  order  as  should  be 
made  by  the  said  Court  in  the  premises,  and  that  I  should  have 
then  and  there  the  said  writ :  And  whereas,  I,  the  said  sheriff, 
in  obedience  to  the  last  recited  writ  or  order  of  sale,  after  having 
given  due,  fair,  and  legal  notice,  according  to  the  directions  there- 
of, of  the  time  and  place  of  sale  twenty  days  previous  thereto,  by 
advertisements  in  the  public  newspapers  and  by  hand  bills  set  up 
in  the  most  public  places  in  my  bailiwick,  did,  on  Monday,  the 
third  day  of  February,  in  the  year  of  our  Lord  1902,  at  half- 
past  five  o'clock  in  the  evening,  at  Room  676  City  Hall,  in  the 
City  of  Philadelphia,  expose  (inter  alia)  the  said  three-story 
brick  messuage  or  tenement  and  lot  or  piece  of  ground  herein 
above  particularly  described,  with  the  appurtenances,  to  sale  by 
public  vendue  or  outcry,  when  and  where  I  sold  the  same  to  D. 
T.  M.,  of  the  said  City  of  Philadelphia,  in  the  state  aforesaid, 
for  the  price  or  sum  of  one  thousand  and  twenty-five  dollars,  he 
being  the  highest  and  best  bidder,  and  that  the  highest  and  best 
price  bidden  for  the  same.  Now,  know  ye,  that  I,  the  said  A.  T., 
high  sheriff  as  aforesaid,  for  and  in  consideration  of  the  said 
sum  of  one  thousand  and  twenty-five  dollars,  lawful  money  of 
the  United  States  of  America,  to  me  in  hand  well  and  truly 
paid  by  the  said  D.  T.  M.,  at  or  before  the  sealing  and  delivery 


320  Conveyancing  in   Pennsylvania. 

hereof,  the  receipt  whereof  I  do  hereby  acknowledge,  have  grant- 
ed, bargained,  and  sold,  and  by  these  presents  according  to  the 
directions  of  the  said  last  recited  writ  or  order  of  sale,  and  by 
force  and  virtue  thereof,  and  of  the  constitution  and  laws  of 
this  commonwealth,  in  such  case  made  and  provided,  do  grant, 
bargain,  and  sell  unto  the  said  D.  T.  M.,  his  heirs  and  assigns, 
all  that  the  aforesaid  certain  three-story  brick  messuage  or  tene- 
ment and  lot  or  piece  of  ground  (here  describe  premises),  to- 
gether with  the  free  use  and  privilege  of  the  said  alley  as  a  pas- 
sage way  and  watercourse,  at  all  times  hereafter  forever,  and  to- 
gether with  all  and  singular  the  buildings,  improvements,  ways, 
streets,  alleys,  passages,  waters,  watercourses,  rights,  liberties, 
privileges,  hereditaments,  and  appurtenances  whatsoever,  there- 
unto belonging  or  in  any  wise  appertaining,  and  the  reversions 
and  remainders,  rents,  issues,  and  profits  thereof :  And  also,  all 
the  estate,  right,  title,  interest,  property,  claim,  and  demand 
whatsoever  of  them,  the  said  W.  W.  S.,  G.  S.  and  M.  S.,  minor 
children  as  aforesaid,  by  their  guardian,  J.  J.  M.,  either  at  law, 
in  equity,  or  otherwise  howsoever,  of,  in,  and  to,  or  out  of,  the 
same  and  every  part  and  parcel  thereof,  to  have  and  to  hold  all 
and  singular  the  hereditaments  and  premises  above  particularly 
described  and  hereby  granted  or  mentioned  or  intended  so  to  be, 
with  the  appurtenances,  unto  the  said  D.  T.  M.,  his  heirs  and 
assigns,  to  and  for  the  only  proper  use  and  benefit  and  behoof 
of  the  said  D.  T.  M.,  his  heirs  and  assigns  forever,  according  to 
the  form,  force,  and  effect  of  the  laws  and  usages  of  this  com- 
monwealth, in  such  case  made  and  provided. 

In  Witness  Whereof,  I,  the  said  sheriff,  have  hereunto  set 
my  hand  and  seal,  this  twenty-eighth  day  of  March,  in  the  year 
of  our  Lord  one  thousand  nine  hundred  and  three  (1903). 

A.  T.     (Seal.) 
Sheriff. 

Add  sheriff's  acknowledgment  as  in  form,  Par.  236,  page  308. 
Partition  by  common  pleas  courts  under  the  common  law  is  nowadays 
rarely  used.     The  most  usual  mode  of  partition  is  by  equity. 

242.     Quit  Claim  Deed  (Usual  Form). 

This  Indenture,  made  the  ninth  day  of  April,  in  the  year  of  our 
Lord  one  thousand  nine  hundred  six  (1906),  Between  Thomas 
Jones  and  Elsie,  his  wife,  both  of  Philadelphia,  State  of  Pennsyl- 
vania (hereinafter  called  the  parties  of  the  first  part),  and  Wil- 


Forms.  321 

Ham  Flick,  of  the  City  of  Philadelphia,  State  of  Pennsylvania 
(hereinafter  call  the  party  of  the  second  part). 

Witnesseth,  That  the  said  parties  of  the  first  part,  for  and  in 
consideration  of  the  sum  of  one  thousand  ($1,000.00)  dollars, 
lawful  money  of  the  United  States  of  America,  to  them  well  and 
truly  paid  by  the  said  party  of  the  second  part,  at 
and  before  the  sealing  and  delivery  of  these  presents, 
the  receipt  whereof  is  hereby  acknowledged,  have  re- 
mised, released  and  quit-claimed,  and  by  these  presents  do 
remise,  release  and  quit-claim  unto  the  said  party  of  the 
second  part,  and  to  his  heirs  and  assigns  forever,  All  that  cer- 
tain lot  or  piece  of  ground  with  the  three-story  brick  messuage  or 
dwelling  thereon  erected,  situate  on  the  east  side  of  "P"  Street, 
at  a  distance  of  one  hundred  three  ( 103')  feet  northward  from  the 
north  side  of  "G"  Street,  containing  in  front  or  breadth  on  said 
"F"  Street  eighteen  (18')  feet  and  extending  of  that  width  in 
length  or  depth  eastward  in  parallel  lines  at  right  angles  to  the 
said  "G"  Street  one  hundred  ( 100')  feet  to  a  three  feet  wide  alley, 
leading  southward  into  said  "G"  Street,  Together  with  all  and 
singular,  the  tenements,  hereditaments  and  appurtenances  there- 
unto belonging,  or  in  any  wise  appertaining,  and  the  reversions, 
remainders,  rents,  issues  and  profits  thereof :  And  also,  all  the 
estate,  right,  title,  interest,  property,  claim  and  demand  whatso- 
ever, as  well  in  law  as  in  equity,  of  the  said  partis  of  the  first 
part,  of,  in,  or  to  the  above-described  premises,  and  every  part 
and  parcel  thereof,  with  the  appurtenances.  To  have  and  to  hold 
all  and  singular  the  above-mentioned  and  described  premises, 
together  with  the  appurtenances,  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns  forever. 

In  witness  whereof,  the  said  parties  of  the  first  part  have  here- 
unto set  their  hand.?  and  seata  the  day  and  year  first  above  written. 

Sealed   and   delivered   in   the^j 

presence  of  us,  [_   Thomas  Jones.         (Seal.) 

Robert  Roe, 
Oscar  Thomas. 


Elsie  Jones.  (Seal.) 


Received,  the  day  of  the  date  of  above  Indenture,  of  the  above- 
named  William  Flick,  the  sum  of  one  thousand  ($1,000.00) 
being  the  full  consideration  above  mentioned. 

Thomas  Jones. 


322  Conveyancing  in   Pennsylvania. 

State  of  Pennsylvania, 


.} 


SS  ' 

County  of  Philadelphia, 

On  the  ninth  day  of  April  Anno  Domini  1906,  before  me,  the 
subscriber,  a  notary  public  for  the  C ommonwealth  of  Pennsyl- 
vania, residing  in  Philadelphia,  personally  appeared  the  above- 
named  Thomas  Jones  and  Elsie,  his  wife,  and  in  due  form  of 
law  acknowledged  the  above  indenture  to  be  their  act  and  deed 
and  desired  the  same  might  be  recorded  as  such. 

Witness  my  hand  and  notarial  seal  the  day  and  year  aforesaid. 

Robert  Roe,     (Seal.) 

Notary  Public. 
Commission  expires,  etc. 

243.     Short  Form  of  Quit  Claim  Deed  Under  Act  of  April  1,  1909. 

This  Deed,  Made  the  Ninth  day  of  April  in  the  year  nineteen 
hundred  and  nine  (1909),  between  Thomas  Jones  and  Elsie, 
his  Wife,  both  of  the  City  of  Philadelphia,  State  of  Pennsylvania, 
(hereinafter  called  the  parties  of  the  first  part)  and  William 
Flick,  of  the  City  of  Philadelphia,  State  of  Pennsylvania,  (here- 
inafter called  the  party  of  the  second  part)  :  WITNESSETH,  That 
in  consideration  of  One  Thousand  ($1,000.00)  Dollars,  in  hand 
paid,  the  receipt  whereof  is  hereby  acknowledged,  the  said  par- 
ties of  the  first  part  do  hereby  release  and  quitclaim  to  the  said 
party  of  the  second  part, 

All  That  Certain  lot  or  piece  of  ground  with  the  three  story 
brick  Messuage  or  Dwelling  thereon  erected,  situate  on  the  East 
side  of  "F"  Street  at  a  distance  of  One  Hundred  Three  (103') 
feet  Northward  from  the  North  side  of  "C"  Street  contain- 
ing in  front  or  breadth  on  said  "F"  Street  Eighteen  (18')  feet 
and  extending  of  that  width  in  length  or  depth  Eastward  in  par- 
allel lines  at  right  angles  to  the  said  "G"  Street  One  Hundred 
(100')  feet  to  a  three  feet  wide  alley,  leading  Southward  into 
said  "G"  Street. 

In  Witness  Whereof,  said  parties  of  the  first  part  have  here- 
unto set  their  hands  and  seals,  the  day  and  year  first  above 
written. 

Sealed  and  delivered  in    "^ 
the  presence  of  Elsie  Jones.  (Seal.) 

Wm.  Blinn,  J  Thomas  Jones.        (Seal.) 

Oscar  Flinn.  I 


Forms.  325 

State  of  Pennsylvania,       ") 
County  oe  Philadelphia,    J 

On  this  Ninth  day  of  April,  A.  D.  1909,  before  me,  the  Sub- 
scriber, a  Notary  Public  for  the  Commonwealth  of  Pennsylvania, 
residing  in  Philadelphia,  came  the  above  named  Thomas  Jones 
and  Elsie,  his  Wife,  and  acknowledged  the  foregoing  deed  to  be 
their  act  and  deed,  and  desired  the  same  to  be  recorded  as  such. 

Witness  my  hand  and  Notarial  seal,  the  day  and  year  afore- 
said. 

Wm.  Blinn,        (Seal.) 
Notary  Public. 
Commission  expires,  etc. 
244.     Deed  of  Confirmation.* 

Know  all  Men  by  these  Presents,  That  I,  John  Smith,  of 
Philadelphia,  in  Philadelphia  County  and  State  of  Pennsylvania, 
in  consideration  of  the  sum  of  Dollars,  to  me  in  hand 

paid  by  William  Jones,  the  receipt  whereof  is  hereby  acknowl- 
edged, have  granted,  bargained,  sold,  ratified,  and  confirmed  and 
by  these  presents  do  grant,  bargain,  sell,  ratify,  and  confirm,  unto 
the  said  William  Jones,  his  heirs  and  assigns,  forever,  all  the 
estate  which  I  have  in  the  messuage,  with  the  appurtenances,  in 
the  county  aforesaid,  now  in  the  possession  and  occupation  of 
the  said  William  Jones.  To  have  and  to  hold  the  same  unto 
him,  the  said  William  Jones,  and  his  heirs  and  assigns,  forever. 

In  Witness  Whereof  I  have  hereunto  set  my  hand  and  seal 
this  day  of  ,  A.  D.  19     . 

Signed,  Sealed  and  Delivered  ^ 
in  the  presence  of 

William  Dick. 

Alexander  Thompson, 


>    John  Smith.         (Seal.) 


*Add  usual  form  of  acknowledgment  of  individual,  as  in  form,  Par. 
208,  page  268.  This  deed  is  used  to  confirm  the  title  already  held  by  the 
grantee  and  to  convey  to  him  any  outstanding  interest  of  claim  against  his 
title  which  may  exist  by  reason  of  defect  in  the  original  conveyance  to  him, 
or  by  defective  recording,  mistake,  etc. 

245.     Deed  of  the  Right  of  Way  or  Other  Easement. 

This  Indenture,  Made  the  day  of  ,  in 

the  year  of  our  Lord  One  thousand  nine  hundred  and  eight,  be- 
tween Adam  Brown,  of  Philadelphia,  of  the  one  part,  and 
Charles  Doe,  of  Philadelphia  aforesaid,  of  the  other  part;  Wit- 


324  Conveyancing   in   Pennsylvania. 

nesseth,  that  the  said  Adam  Brown,  for  and  in  consideration  of 
the  sum  of  One  Dollar,  lawful  money  of  the  United  States,  unto 
him  well  and  truly  paid  by  the  said  Charles  Doe,  at  and  before 
the  ensealing  and  delivery  hereof,  the  receipt  whereof  is  hereby 
acknowledged,  hath  granted,  bargained,  and  sold,  and  by  these 
presents  doth  grant,  bargain,  and  sell,  unto  the  said  Charles 
Doe,  and  to  his  heirs  and  assigns,  the  free  and  uninterrupted  use, 
liberty,  and  privilege  of,  and  passage  in  and  along,  a  certain  alley 
or  passage,  of  feet  in  breadth  by  feet  in  depth,  ex- 

tending out  of  and  from  Greene  Street,  in  the  said  city,  along 
the  east  side  of  the  present  messuage,  dwelling-house,  and  lot  of 
the  said  Charles  Doe.    Together  with  free  ingress,  egress,  and 
regress  to  and  for  the  said  CharlEs  Doe,  his  heirs  and  assigns, 
his  and  their  tenants  and  under-tenants,  occupiers,  or  possessors 
of  the  said  Charles  Doe's  messuage  and  ground  contiguous  to 
the  said  alley  or  passage,  at  all  times  and  seasons  for  ever  here- 
after, into,  along,  upon,  and  out  of  the  said  alley,  in  common 
with  him,  the  said  Adam  Brown,  his  heirs  and  assigns,  tenants 
or  occupiers  of  the  said  Adam  Brown's  messuage  and  ground, 
adjacent  to  the  said  alley.    To  have  and  to  hold  all  and  singular 
the  privileges  aforesaid  to  him,  the  said  Charles  Doe,  his  heirs 
and  assigns,  to  the  only  proper  use  and  behoof  of  him,  the  said 
Charles  Doe,  his  heirs  and  assigns,  forever,  in  common  with 
him,  the  said  Adam  Brown,  his  heirs  and  assigns,  as  aforesaid ; 
subject,  nevertheless,  to  the  moiety  or  equal  half  part  of  all  neces- 
sary charges  and  expenses  which  shall  from  time  to  time  accrue 
in  paving,  amending,  repairing,  and  cleansing  the  said  alley. 

In  Witness  Whereof,  We  have  hereunto  set  our  hands  and 
seals  the  day  and  year  first  above  written. 

Signed,  Sealed  and  Delivered  ^ 

in  the  presence  of  I        Adam  Brown.     (Seal.) 

Andrew  Smith,  (Seal.) 

Allen  Dick.  J 

If  the  grantor  is  married,  his  wife  should  also  join  in  the  deed. 

Add  acknowledgment  as  in  case  of  regular  deed,  form,  Par.  208,  page  268. 

246.     Deed  of  Exchange  of  Lands.* 

This  Indenture,  Made  the  Twenty-first  day  of  January,  A. 
D.  One  thousand  nine  hundred  and  twelve  (1912)  between  John 

*This  is  a  form  of  deed  of  exchange  in  which  the  grant  is  made  by  the 
respective  parties   in  the   same  instrument.     Very  often   in   modern  real 


Forms.  325 

Black,  of  Philadelphia,  of  the  one  part,  and  James  Smith,  of 
Philadelphia,  of  the  other  part;  Witnesseth,  that  the  said  John 
Black  hath  given  and  granted,  and  by  these  presents  doth  give 
and  grant,  unto  the  said  James  Smith  ; — All  That  Certain 
lot  or  piece  of  ground  with  the  buildings  and  improvements 
thereon  erected,  being  premises  No.  3122  "X"  Street  in  the  City 
of  Philadelphia,  and  being  more  particularly  described  as  fol- 
lows, to  wit,  Situate  (here  describe  premises  in  full)  for  and  in 
exchange  of  All  That  Certain  lot  or  piece  of  ground  with  the 
buildings  and  improvements  thereon  erected  belonging  to  the  said 
James  Smith  being  known  as  premises  No.  325  "M"  Street  in  the 
City  of  Philadelphia  and  more  particularly  described  as  follows, 
to  wit,  Situate  (here  describe  premises  in  full).  To  have  and 
to  hold  said  premises  No.  3122  "X"  Street  with  the  appurte- 
nances to  the  said  James  Smith,  his  heirs  and  assigns  forever, 
for  and  in  exchange  of  premises  No.  325  "M"  Street  with  the 
appurtenances.  And  the  said  John  Black  doth  covenant,  &c, 
(here  add  such  covenants  as  may  be  agreed  upon). 

And  the  said  James  Smith  hath  likewise  on  his  part  given  and 
granted,  and  by  these  presents  doth  fully,  freely,  and  absolutely 
give  and  grant,  unto  the  said  John  Black,  his  heirs  and  assigns, 
premises  No.  325  "M"  Street  as  described  aforesaid  with  the 
appurtenances.  To  have  and  to  hold  said  premises  325  "M" 
Street  and  hereditaments,  &c,  to  the  said  John  Black,  his  heirs 
and  assigns  forever  and  in  exchange  of  and  for  premises  No. 
3125  "X"  Street  aforesaid.  Provided  always,  nevertheless,  and 
these  presents  are  upon  this  condition,  and  it  is  the  true  intent 
and  meaning  of  the  parties  to  these  presents,  their  executors,  ad- 
ministrators, or  assigns,  shall,  at  any  times  hereafter  during  the 
said  respective  terms  above  granted,  by  color  or  means  of  any 
former  or  other  gift,  grant,  or  sale,  or  otherwise  howsoever,  be 
ousted  or  evicted  of  and  from  the  possession  of  either  of  the  said 
messuages  or  tenements,  and  other  the  premises,  so  respectively 
granted  in  exchange  as  aforesaid,  or  any  part  thereof,  then  and 
in  such  cases  these  presents,  and  every  matter  and  thing  herein 
contained,  shall  be  utterly  void  and  of  none  effect,  and  then  and 
thenceforth  it  shall  and  may  be  lawful  to  and  for  the  party  or 

estate  practice  separate  deeds  are  used;  in  other  words,  James  Smith  would 
make  a  deed  granting  his  property  to  John  Black  and  John  Black  a 
separate  deed  granting  his  property  to  James  Smith.  In  such  case  the 
ordinary  deed  form  for  individual  (see  form,  page  64)  may  be  used. 


326  Conveyancing  in  Pennsylvania. 

parties  so  ousted  or  evicted  into  his  or  their  said  former  messuage 
or  tenement  and  premises,  with  all  and  singular  the  appurte- 
nances, to  re-enter,  and  the  same  to  have  again,  repossess,  and 
«njoy,  as  of  his  and  their  former  estate  or  estates,  anything 
herein  contained  to  the  contrary  thereto  in  any  wise  notwithstand- 
ing. 

In  Witness  Whereof,  The  said  parties  have  hereunto  set  their 
hands  and  seals,  the  day  and  year  aforesaid. 

Signed,  Sealed,  and  Delivered  "^ 
in  the  presence  of  I     John   Black.         (Seal.) 

Robert  Roe,  |     James  Smith.        (Seal.) 

John  Doe.  J 

State  of  Pennsylvania,      ") 

>  SS ' 

County  of  Philadelphia,    J 

On  the  Twenty-first  day  of  January,  A.  D.  1912,  before  me  the 
subscriber  a  notary  public  for  the  Commonwealth  of  Pennsyl- 
vania, residing  in  Philadelphia,  personally  appeared  the  above 
named  John  Black  and  James  Smith  who  in  due  form  of  law 
acknowledged  the  foregoing  indenture  to  be  their  and  each  of 
their  act  and  deed  to  the  intent  that  the  same  might  be  recorded 
as  such. 

Witness  my  hand  and  Notarial  seal  the  day  and  year  afore- 
said. 

John  Doe, 
Notary  Public. 

'Commission  expires  First  day  of  July,  1913. 

247.  Ground  Rent  Deed. 

See  form,  paragraph  No.  105,  page  142. 

248.  Lease  for  Property  in   City   (All   Waivers). 

This  Agreement  Witnesseth,  That  Robert  Stone,  Agt.  for 
Allen  Smith,  hereinafter  called  the  Lessor,  does  hereby  let  unto 
William  Sloan,  hereinafter  called  the  Lessee  Premises  No. 
1321  X  Street  in  the  City  of  Philadelphia  to  be  used  as  dwelling 
house  and  for  no  other  purpose,  for  the  term  of  one  year  to  begin 
on  the  Twelfth  day  of  February,  1912,  at  the  rent  of  Four  Hun- 
dred and  Eighty  ($480)  dollars  per  annum  payable  in  equal 
monthly  payments  of  Forty  ($40)  dollars  in  advance  on  the 
Twelfth  day  of  each  month  at  102  W.  St.  or  at  such  other  place 


Forms.  327 

within  Philadelphia  as  said  lessor  may  in  writing  from  time  to 
time  direct;  and  the  said  Lessee  accepts  possession  of  the  said 
premises  upon  the  said  terms,  and  further  agrees  to  the  following 
covenants,  stipulations  and  conditions : 

1st.  Lessee  will  pay  the  said  specified  rent,  at  the  times  and 
in  the  manner  above  provided,  and  all  damages,  costs  and  charges 
in  this  lease  provided  for,  and  in  case  of  non-payment  of  said 
rent,  damages,  costs  and  charges,  if  any,  or  in  case  the  leased 
premises  shall  be  deserted  or  vacated,  Lessor  may  enter  the 
same,  either  by  force  or  otherwise,  without  being  liable  to  any 
prosecution  or  action  therefor,  and  may  distrain  not  only  for  the 
specific  rent  above  mentioned,  but  also  for  all  damages,  costs,  and 
charges  in  this  lease  mentioned  and  provided  for  with  the  same 
force  and  effect  as  if  the  same  were  a  distress  for  rent  in  arrear, 
and  also  relet  the  same  premises,  as  agent  of  Lessee  ,  for  any  un- 
expired portion  of  the  term  and  receive  the  rent  therefor.  If 
Lessee  shall,  at  any  time  during  the  continuance  of  this  lease 
attempt  to  remove  or  manifest  an  intention  to  remove  the  goods 
and  chattels  out  or  from  said  premises  or  desert  or  vacate  said 
premises  without  having  paid  and  satisfied  the  said  Lessor  in 
full  for  all  rent  which  shall  become  due  during  the  term  of  this 
lease,  or  any  continuation  thereof,  or  if  said  Lessee  becomes 
embarrassed  or  makes  an  assignment  for  the  benefit  of  creditors, 
or  is  sold  out  by  any  sale  under  process  of  law,  then  in  such  cases 
the  whole  rent  for  the  whole  term  of  this  lease,  or  any  continua- 
tion thereof,  shall  be  taken  to  be  due  and  payable  forthwith,  and 
the  said  Lessor  may  proceed  to  distrain  for  and  collect  the 
whole  in  the  same  manner  as  if,  by  the  conditions  of  this  lease, 
the  rent  for  the  whole  term,  or  any  continuation  thereof,  were 
payable  in  advance,  any  law,  usage  or  custom  to  the  contrary  not- 
withstanding. Lessee  also  agrees  that  all  property  on  the  said 
premises  shall  be  liable  to  distress  for  rent,  and  for  said  damages, 
costs  and  charges,  and  for  all  costs  of  distress,  watchmen's  wages 
and  constables'  commissions,  including  such  as  may,  by  Act  of 
Assembly,  be  chargeable  to  Lessor  ;  and  in  case  any  goods  shall 
have  been  removed  from  the  leased  premises,  Lessor  may  fol 
low,  take  and  return  said  goods  to  the  leased  premises,  or  dis- 
train on  and  sell  the  same  wherever  found.  Lessee  hereby 
waiving  the  benefit  of  all  laws  made  or  to  be  made  exempting 
property  from  levy  and  sale,  either  on  distress  for  said  rent,  dam- 


328  Conveyancing  in   Pennsylvania. 

ages,  costs,  and  charges,  or  on  a  judgment  for  said  rent,  damages, 
costs  and  charges,  or  for  breach  of  any  other  of  the  conditions 
herein  contained. 

2d.  Lessee  shall  not  use,  or  allow  to  be  used,  the  said  premi- 
ses for  any  purpose  other  than  above  mentioned,  nor  assign  the 
said  lease,  nor  underlet  the  said  premises,  or  any  part  thereof, 
without  the  written  consent  of  Lessor  endorsed  hereon.  This 
covenant  shall  apply  as  well  to  an  involuntary  transfer  by  opera- 
tion of  law,  whether  by  execution,  insolvency  or  bankruptcy,  as 
to  a  voluntary  assignment  or  underletting. 

3d.  Lessee  will,  during  the  term  remove  or  caused  to  be 
removed  from  said  premises  any  and  all  ashes,  rubbish  or  refuse 
matter  and  keep,  and  at  the  expiration  thereof  deliver  up,  the  said 
premises  in  as  good  order  and  condition  as  the  same  now  are, 
reasonable  wear  and  tear,  and  damage  by  fire  or  other  casualty, 
not  occurring  through  Lessee's  negligence,  excepted,  Lessee 
shall  not  make  any  alterations  additions,  or  improvements  with- 
out Lessor's  written  consent  endorsed  hereon,  and  all  alterations, 
additions  or  improvements  made  by  either  of  the  parties  hereto 
upon  the  premises,  shall  be  the  property  of  Lessor  ,  and  shall 
remain  upon,  and  be  surrendered  with,  the  premises  at  the  termi- 
nation of  this  lease,  without  molestation  or  injury. 

4th.  Unless  either  party  hereto  shall  give  to  the  other  written 
notice  for  removal  at  least  Three  months  prior  to  the  end  of  said 
term,  this  lease  shall  continue,  upon  the  terms  and  conditions 
then  in  force,  for  a  further  period  of  One  year  and  so  on  from 
year  to  year  until  terminated  by  either  party  hereto  giving  to  the 
other  at  least  three  months  written  notice  for  removal  prior  to  the 
expiration  of  the  then  current  term ;  Provided,  however,  that  if 
Lessor  shall  have  given  three  months  written  notice,  to  be 
served  by  leaving  the  same  on  demised  premises  previous  to  the 
expiration  of  said  term,  or  of  any  subsequent  term  created  under 
the  provisions  hereof,  of  Lessor's  intention  to  change  the  terms 
and  conditions  of  this  lease,  and  Lessee  shall  hold  over  at  the 
end  of  the  then  current  term  after  such  notice,  Lessee  shall  be 
considered  a  tenant  under  the  terms,  remedies  and  conditions  of 
this  lease  as  modified  by  such  notice  for  a  further  period  of  one 
year  and  thereafter,  from  year  to  year  until  terminated  as  here- 
inabove provided,  with  the  same  effect  as  if  a  new  lease  in  such 
form  had  been  duly  executed. 


Forms.  329 

5th.  It  is  further  agreed  that  if  the  said  rent  shall  at  any  time 
be  in  arrear  and  unpaid,  or  if  Lessee  shall  fail  to  comply  with 
any  other  of  the  covenants,  terms  or  conditions  of  this  lease  dur- 
ing the  said  term,  or  any  subsequent  term,  or  with  any  notice 
given  under  the  terms  hereof  this  lease  may,  at  the  option  of 
Lessor  ,  be  forthwith  terminated,  and  thereupon  any  Attorney 
may  immediately  thereafter,  as  Attorney  for  Lessee  ,  at  the  re- 
quest of  Lessor  sign  an  agreement  for  entering  in  any  compe- 
tent court  an  amicable  action  and  judgment  in  ejectment  to  any 
term  then  past  or  present  (without  any  stay  of  execution  or  ap- 
peal) against  Lessee  ,  and  all  persons  claiming  under  Lessee 
for  the  recovery  by  Lessor  of  possession  of  the  hereby  demised 
premises,  and  for  all  arrearages  of  rent,  if  any,  without  any  lia- 
bility on  the  part  of  the  said  Attorney,  for  which  this  shall  be  a 
sufficient  warrant ;  and  thereupon  a  writ  of  habere  facias  pos- 
sessionem, with  a  clause  of  fieri  facias  for  such  arrearages  of 
rent,  if  any  may  issue  forthwith,  without  any  prior  writ  or  pro- 
ceeding whatsoever,  and  Lessee  hereby  releases  to  Lessor  all 
errors  and  defects  whatsoever  in  entering  such  action  on  judg- 
ment, or  causing  such  writ  of  habere  facias  possessionem  to  be 
issued,  or  in  any  proceeding  thereon  or  concerning  the  same ;  and 
hereby  agrees  that  no  writ  of  error  or  objection  or  exception  shall 
be  made  or  taken  thereto;  and  a  copy  of  this  lease,  with  any 
modifications  thereof,  being  filed  in  said  action,  it  shall  not  be 
necessary  to  file  the  original  as  a  warrant  of  Attorney,  any  law 
or  rule  of  court  to  the  contrary  notwithstanding.  No  such  de- 
termination of  this  lease,  nor  taking  or  recovering  possession  of 
the  premises,  shall  deprive  Lessor  of  any  other  action  against 
Lessee  for  possession,  for  rent,  or  for  damages,  nor  shall  any 
distress  or  suit  for  rent  or  damages  prevent  Lessor  from  pro- 
ceeding to  recover  possession  on  a  breach  of  any  of  the  terms  or 
conditions  hereof. 

6th.  It  is  hereby  further  agreed  that  if  Lessor  should  for  any 
cause  be  unable  to  deliver  possession  of  said  premises  to  Lessee 
at  the  beginning  of  the  term  of  this  lease  or  within  ten  days  there- 
after, Lessor  shall  not  be  liable  therefor  in  damages  to  Lessee  , 
and  upon  Lessor's  being  unable  to  deliver  possession  before  the 
expiration  of  said  ten  days,  this  lease  may  at  the  option  of  Les- 
see    be  forthwith  terminated. 


330  Conveyancing   in   Pennsylvania. 

All  rights,  remedies  and  liabilities  herein  given  to,  or  imposed 
upon,  either  of  the  parties  hereto  shall  extend  to  the  heirs,  execu- 
tors, administrators,  successors,  and,  so  far  as  this  lease  and  the 
term  thereby  created  is  assignable  by  the  terms  hereof,  to  the 
assigns  of  such  party. 

In  Witness  Whereof,  The  parties  hereto  have  hereunto  set 
their  hands  and  seals  this  Eleventh  day  of  February  1912. 

Sealed  and  Delivered       C  Robert  Stone,        (Seal.) 

in  presence  of  J  Agent  for  Allen  Smith. 

A.B.  William  Sloan.      (Seal.) 

/  hereby  agree  to  be  responsible  to  the  said  Lessors,  or  their 
assigns,  for  the  true  and  faithful  performance  of  the  above  con- 
tract, and  very  renewal  thereof,  on  the  part  of  the  said  Lessee  , 
without  recouse  to  said  Lessee     being  first  required. 

Witness  my  hand  and  seal  the  Eleventh  day  of  February, 
A.  D.  191-?. 

Sealed  and  Delivered    "j 
in  presence  of  >  Herman  S.  Schmidt.         (Seal.) 

A.B.  J 

249.    Another  Form  of  Lease. 

This  Agreement,  Made  this  first  day  of  September,  A.  D. 
igi2,  between  A.  B.  of  the  first  part  and  C.  D.  of  the  second  part. 

WITNESSETH,  That  the  said  party,  in  consideration  of  the  rents 
and  covenants  hereinafter  mentioned,  does  demise  and  lease  unto 
the  said  second  party  to  be  used  as  a  Grocery  Store  the  premises 
situate  in  the  City  of  Reading,  County  of  Berks  and  State  of 
Pennsylvania,  described  as  follows :    No.  2342  M.  Street. 

To  Have  and  to  Hold  unto  the  said  second  party,  subject  to 
the  conditions  of  this  agreement  for  the  term  beginning  on  the 
first  day  of  September,  191 2,  and  ending  on  the  first  day  of  Sep- 
tember, 1913. 

In  Consideration  oe  Which  the  said  second  party  agree? 
that  he  will  pay  to  the  said  first  party  for  the  use  of  said  premi- 
ses, the  sum  of  Three  Hundred  and  Sixty  Dollars,  payable  as 
follows  viz :  Thirty  dollars  on  the  first  day  of  each  and  every 
month  in  advance  and  the  said  second  party  also  agrees  that  he 
will  keep  said  premises  in  as  good  repair  and  condition  as  at 
present  and  will  at  the  expiration  of  this  lease,  surrender  up 
same  in  like  repair  and  condition,  natural  wear  and  damage  by 


Forms.  331 

the  elements  excepted ;  that  he  will  permit  no  unlawful  business 
.to  be  carried  on  upon  said  premises  or  permit  anything  to  be  done 
contrary  to  the  conditions  of  the  policies  of  insurance  on  said 
premises  whereby  the  hazard  might  be  increased  or  the  insurance 
invalidated;  that  he  will  not  underlet  said  premises,  nor  assign 
this  lease  or  any  interest  therein  to  any  person  without  the  writ- 
ten consent  of  the  said  first  party;  that  he  will  not  remove  from 
said  premises  during  the  term  of  this  lease  without  the  written 
consent  of  the  said  first  party  and  in  case  of  removal,  or  attempt 
to  remove,  the  entire  rent  reserved  for  the  full  term  of  this  lease 
shall  become  due  and  payable  at  once  and  may  forthwith  be  col- 
lected by  distress  or  otherwise. 

That  he  will  keep  the  said  premises  in  a  clean  and  sanitary  con- 
dition and  remove  all  ashes  or  other  garbage  which  may  accumu- 
late upon  the  same  during  the  said  term  or  failing  therein  pay 
to  the  said  first  party  double  the  cost  of  removing  the  same  to  be 
recovered  the  same  as  rent  due  and  in  arrears ;  that  he  will  pay 
the  rent  for  the  use  of  water  and  lights  upon  the  said  premises 
during  the  said  term  and  which  may  be  recovered  by  said  first 
party  as  rent  due  and  in  arrears ;  and  the  said  first  party  reserves 
the  right  to  display  a  "for  rent  or  sale"  card  upon  the  said  prem- 
ises and  to  enter  the  premises  for  the  purpose  of  making  necessary 
repairs,  or  to  show  the  same  to  prospective  purchasers  or  lessees. 

And  any  goods  removed  from  said  premises,  either  before  or 
after  the  expiration  of  the  said  term,  while  any  portion  of  the  said 
rent  remains  unpaid,  whether  due  or  not,  shall  remain  liable  to 
distress  for  such  rent  for  the  period  of  thirty  days  after  such  re- 
moval, the  same  as  though  they  remained  upon  the  premises ;  and 
any  removal  of  the  goods  from  the  said  premises  at  any  time, 
either  by  day  or  by  night,  without  the  written  consent  of  the  said 
first  party,  shall  be  considered  a  clandestine  and  fraudulent  re- 
moval. And  if  default  shall  be  made  in  the  payment  of  any  part 
of  said  rent  for  five  days  after  the  same  becomes  due,  or  if  the 
second  party  shall  break  or  evade,  or  attempt  to  break  or  evade, 
any  of  the  covenants,  agreements  and  conditions  of  this  lease, 
the  first  party  may  forfeit  and  annul  the  unexpired  portion  of  this 
lease  and  enter  upon  and  repossess  the  said  premises  without  pro- 
cess of  law  and  without  any  notice  whatsoever. 

And  it  is  further  agreed  that  the  acceptance  by  said  first  party 
of  any  of  the  said  rent  at  any  time  after  the  same  has  become  due, 


332  Conveyancing   in   Pennsylvania. 

or  default  has  been  made  in  the  payment  thereof  or  any  failure  of 
the  first  party  to  enforce  any  of  his  rights  under  this  lease  or  any 
of  the  penalties,  forfeitures  or  conditions  herein  contained,  shall 
not  in  any  wise  be  considered  a  waiver  of  his  right  to  enforce  the 
same  and  that  he  may  enforce  such  forfeiture  without  any  notice 
whatsoever,  and  that  any  attempt  to  collect  the  rent  by  one  pro- 
ceeding shall  not  be  considered  as  a  waiver  of  the  right  of  said 
first  party  to  collect  the  same  by  any  other  proceeding. 

And  the  said  second  party  hereby  waives  the  usual  three 
months'  notice  to  quit,  and  agrees  to  surrender  said  premises  at 
the  expiration  of  said  term,  or  the  termination  of  this  lease  with- 
out any  notice  whatsoever.  And  upon  any  proceeding  instituted 
for  the  recovery  of  said  rent,  either  by  distress  or  otherwise,  the 
said  second  party  waives  the  benefit  of  all  appraisement,  stay  and 
exemption  laws,  the  right  of  inquisition  on  real  estate,  and  all 
bankrupt  or  insolvent  laws  now  in  force  or  hereafter  passed. 

If  default  shall  be  made  in  the  payment  of  any  rent  when  the 
same  shall  become  due  or  if  the  second  party  shall  permit  any 
judgment  to  be  entered  against  him  or  make  an  assignment  for 
the  benefit  of  creditors,  or  commit  any  other  Act  of  Bankruptcy, 
the  rent  for  the  full  term  shall  become  immediately  due  and  col- 
lectible by  distress  or  otherwise. 

And  the  said  second  party  hereby  confess  judgment  in  favor 
of  the  said  first  party  for  the  whole  amount  of  the  rent  at  any 
time  remaining  unpaid,  whether  the  same  shall  have  been  due  or 
not,  waiving  stay  of  execution,  inquisition  and  all  exemption  laws 
and  five  per  cent,  to  be  added  as  attorney's  commission  for  col- 
lection. 

And  the  said  second  party  does  hereby,  upon  the  breach  of  any 
of  the  conditions  of  this  lease,  authorize  any  attorney  of  any  Court 
of  Record  to  appear  for  him  and  enter  an  amicable  action  of 
ejectment  and  confess  a  judgment  of  ejectment  therein  for  the 
premises  herein  described  and  do  authorize  the  immediate  issuing 
and  execution  of  a  writ  of  habere  facias  possessionem  with 
clauses  of  fieri  facias  for  costs,  without  asking  leave  of  court. 

It  is  further  agreed  that  if  the  said  second  party  (with  the 
consent  of  the  first  party)  shall  continue  in  possession  of  the  said 
premises  after  the  expiration  of  said  term,  then  this  agreement 
shall  become  immediately  operative  for  another  like  term  and  the 
first  party  shall  have  the  right  to  enforce  any  of  the  conditions  or 


Forms.  333 

forfeitures  of  this  agreement,  including  the  confession  of  judg- 
ment, with  the  waivers,  etc.,  as  if  a  new  agreement  identical  with 
this  had  been  executed  by  the  said  parties  for  said  succeeding 
term  or  terms. 

In  Witness  Whereof,  The  parties  aforesaid  have  hereunto 
set  their  hands  and  seals  the  day  and  year  first  above  written. 
X.  Y.  A.  B.         (Seal.) 

R.  T.  C.  D.         (Seal.) 

250.     Farm  Lease. 

This  Agreement  Witnesseth,  That  Benjamin  Reagel,  of 
Carlisle,  Pa.,  doth  hereby  let  and  demise  unto  Daniel  Roberts, 
for  the  term  of  one  year  from  the  first  day  of  April,  A.  D.,  nine- 
teen hundred  twelve,  at  the  rent  of  six  hundred  dollars  per 
annum,  to  be  paid  quarterly  in  advance  by  the  lessee  at  521  Main 
Street,  Carlisle,  Pa.,  or  at  such  place  as  the  lessor  or  subsequent 
owner  may  require ;  the  first  quarterly  payment  thereof  to  be 
made  on  the  first  day  of  April,  nineteen  hundred  twelve,  which 
said  rent  the  said  lessee  doth  hereby  agree  to  pay  to  the  said 
lessor  on  the  days  and  times  aforesaid,  and  that  he  shall  not  nor 
will  assign  this  lease  nor  underlet  said  premises,  or  any 
part  thereof,  or  use  or  occupy  the  same  other  than  as  a  farm, 
without  the  written  consent  of  the  said  lessor  first  had  and  ob- 
tained, and  shall  and  will  during  the  said  term  keep,  and  at  the 
termination  thereof  deliver  up,  the  said  premises  in  as  good  order 
and  repair  as  they  are  now  in,  reasonable  wear  and  tear  and 
casualties  which  may  happen  by  fire  or  otherwise  only  excepted. 
The  lessee  agrees  as  follows,  viz :  That  he  will  use  on  the  said 
premises  all  the  hay,  straw  and  fodder  which  shall  be  grown 
thereon;  that  he  will  not  sell,  assign,  pledge,  remove  or  cause  or 
suffer  to  be  removed  any  of  the  dung,  manure  or  compost  made 
or  which  shall  be  on  said  premises,  and  that  he  will  use  and  spread 
the  same  thereon  at  proper  times  and  places  for  the  nourishment 
thereof,  and  that  upon  the  termination  of  this  lease  or  any  subse- 
quent letting  thereunder  he  will  leave  upon  the  said  premises  any 
remaining  hay,  straw,  fodder  or  manure,  which  shall  then  become 
the  property  of  the  lessor;  that  he  will  not  convert  into  tillage 
or  garden  ground  any  of  the  pasture  or  meadow  ground ;  that 
he  will  not  mow  any  of  the  meadow  or  pasture  ground  more  than 
once  in  any  one  year ;  that  he  will  not  cut  down  or  use  any  of 


334  Conveyancing   in   Pennsylvania. 

the  trees  upon  the  said  premises ;  that  he  will  mow  or  keep  down- 
in  the  usual  manner,  thistles,  docks,  and  other  seeding  weeds ; 
that  he  will  keep  the  fences  in  good  repair,  the  lessor  furnishing 
such  materials  for  the  purpose  as  he  may  think  necessary;  that 
he  will  cultivate  the  said  farm  with  respect  to  crops  and  in  every 
respect  according  to  the  usual  course  and  custom  of  good  hus- 
bandry, sowing  winter  grain  with  a  sufficient  quantity  of  timothy 
and  clover  seed.  And  if  the  rent  shall  remain  unpaid  on  any 
day  on  which  the  same  ought  to  be  paid,  then  the  lessor  may 
enter  the  premises,  and  proceed  by  distress  and  sale  of  the  goods 
there  found,  to  levy  the  rent  and  all  costs  and  officer's  commis- 
sions. The  said  lessee  further  agrees  that  all  goods  on  the  said' 
premises,  and  for  thirty  days  after  removal  shall  be  liable  ta 
distress  for  rent  and  hereby  waives  the  benefit  of  all  exemption 
laws  in  relation  thereto  or  to  any  execution.  And  it  is  hereby 
mutually  agreed,  that  either  party  hereto  may  determine  this 
lease  at  the  end  of  the  said  term,  by  giving  the  other  notice 
thereof,  at  least  three  months  prior  thereto,  but  in  default  of  such 
notice,  this  lease  shall  continue  upon  the  same  terms  and  condi- 
tions as  are  herein  contained,  for  a  further  period  of  one  year 
and  so  on  from  year  to  year  or  until  terminated  by  either  hereto 
giving  to  the  other  three  months'  written  notice  for  removal  pre- 
vious to  the  expiration  of  the  second  or  any  succeeding  or  ex- 
tended term  under  this  lease,  express  or  implied.  And  it  is 
further  agreed,  that  if  the  lessee  shall  die  or  if  there  shall  be  any 
involuntary  assignment  of  this  lease  by  law  or  otherwise,  or  if 
the  said  rent  shall  at  any  time  be  in  arrear  and  unpaid,  or  if  the 
said  lessee  shall  underlet  or  otherwise  use  the  said  premises  than 
as  above  expressed,  or  shall  fail  to  comply  with  the  conditions  of 
this  lease  or  shall  not  well  and  truly  perform  and  fulfill  all  and 
every  the  covenants  and  agreements  herein  contained  on  the  part 
of  the  lessee  to  be  performed  and  kept  then  this  lease  shall,  at 
the  option  of  the  said  lessor,  cease  and  absolutely  determine,  and 
any  attorney  may  immediately  thereafter,  as  attorney  for  the  said 
lessee,  at  the  sole  request  of  the  said  lessor,  sign  an  agreement  for 
entering  in  any  competent  court,  an  amicable  action  and  judgment 
in  ejectment  (without  any  stay  of  execution  or  appeal)  against 
the  said  lessee  and  all  persons  claiming  under  said  lessee  for  the 
recovery  by  the  lessor  of  possession  of  the  hereby  demised 
premises,  without  any  liability  on  the  part  of  the  said  attorney, 
for  which  this  shall  be  a  sufficient  warrant ;  and  thereupon  a 


Forms.  335 

writ  of  habere  facias  possessionem  may  issue  forthwith  without 
any  prior  writ  or  proceeding  whatsoever,  and  the  lessee  hereby 
releases  to  the  lessor  all  errors  and  defects  whatsoever  in  enter- 
ing such  action  or  judgment,  or  causing  such  writ  of  habere 
facias  possessionem  to  be  issued,  or  in  any  proceeding  thereon, 
or  concerning  the  same ;  and  hereby  agree  that  no  writ  of  error 
or  objection  or  exception  shall  be  made  or  taken  thereto;  and  a 
copy  of  this  lease  verified  by  affidavit,  being  filed  in  said  action, 
it  shall  not  be  necessary  to  file  the  original  as  a  warrant  of  at- 
torney, any  law  or  rule  of  court  to  the  contrary  notwithstanding. 
No  such  determination  of  this  lease,  nor  taking  or  recovering  pos- 
session of  the  premises,  shall  deprive  the  lessor  of  any  other 
action  against  the  lessee  for  possession  for  rent  or  for  damages. 

It  is  mutually  agreed  that  this  lease  shall  extend  and  apply 
to  and  bind  the  respective  heirs,  assignees,  devisees,  executors 
and  administrators  of  the  lessor  and  lessee  and  all  covenants, 
agreements,  conditions  and  provisions  herein  shall  apply  to  and 
bind  the  owner  of  the  lease  or  demised  premises  as  if  the  same 
ran  with  the  land  or  as  if  they  were  original  parties  and  the 
lessee  agrees  that  no  objection  shall  be  made  to  the  said  ejectment 
proceedings  by  reason  of  rent  not  having  been  demanded  or  col- 
lected when  due  or  by  any  waiver. 

In  witness  whereof,  the  said  parties  have  hereunto  set  their 
hands  and  seals,  this  first  day  of  February,  one  thousand  nine 
hundred  twelve. 

Sealed    and    delivered    in    the  "1 

presence  of  I        Bent.  Reagel.        (Seal.) 

Wileiam  Linn.  Daniel  Roberts.    (Seal.) 

Charees  Zimmerman.  J 

251.     Farm.  Lease  on  Shares. 

This  Agreement  Witnesseth,  That  Frank  Boeliva  doth 
hereby  let  and  demise  unto  Frederick  Herman,  (here  describe 
farm  with  buildings),  for  the  term  of  one  year  from  the  first  day 
of  April,  A.  D.  nineteen  hundred  twelve;  the  said  Frederick 
Herman  to  yield  and  pay  unto  the  said  Frank  Boeliva  one-half 
part  of  all  the  grain  which  shall  be  raised  or  grown  upon  the 
said  premises,  and  which  letting  is  to  be  according  to  the  follow- 
ing agreements: 

The  said  Frederick  Herman  shall  plant  crops  and  cultivate 
the  farm  as  follows  (state  how  fields  are  to  be  planted;  what 


336  Conveyancing   in   Pennsylvania. 

crops  are  to  be  sown;  how  much  winter  grain,  etc.).  Each  party 
is  to  find  and  pay  for  one-half  the  seeds  for  crops.  The  said 
Frederick  Herman  is  to  find  and  pay  for  all  farming  implements, 
all  the  working  stock,  all  the  necessary  labor  and  all  the  other 
expenses  in  working  and  cultivating  the  farm  and  is  to  work  the 
farm  diligently  in  a  husband-like  manner.  The  said  Frederick 
Herman  is  to  have  the  right  to  keep  and  feed  not  more  than 
horned  cattle  and  horses  ; 

the  products  of  the  dairy  and  garden  products  are  to  be  for  the 
exclusive  use  and  benefit  of  the  said  Frederick  Herman.     The 
manure,  hay,  straw  and  corn  which  shall  be  grown  upon  the 
premises  and  all  manure  made  thereon  shall  belong  solely  to  the 
said  Frank  Boeliva,  but  the  same  shall  be  used  on  the  farm  for 
its  nourishment,  but  any  part  thereof  which  shall  not  have  been 
so  used  shall  belong  to  the  said  Frank  Boeliva.    The  said  Frank 
Boeliva  shall  have  the  right  to  store  in  the  farm  buildings  his 
share  of  the  crops,  and  the  said  Frank  Boeliva  reserves  the  right 
of  entering  and  visiting  the  said  farm  and  the  farm  buildings, 
to  inspect  the  farming  operations,  receive,  take  care  of  and  dis- 
pose of  his  share  of  the  grain.    The  said  Frederick  Herman  shall 
keep  the  fences  up  and  in  good  order  and  repair  at  his  own  ex- 
pense ;  keep  down  the  weeds  and  preserve  all  trees  and  timber. 
It  is  agreed  that  there  shall  not  be  any  partnership  between  the 
parties  hereto ;  and  it  is  hereby  mutually  agreed  that  the  said 
Frank  Boeliva  shall  have  the  ownership  of  one-half  part  of  all 
the  grain  sowed  when  in  the  ground  and  until  it  shall  be  divided 
and  that  all  crops  shall  be  cut  and  harvested  in  due  season  by  the 
said  Frederick  Herman,  and  that  there  shall  be  a  division  be- 
tween the  said  Frank  Boeliva  and  Frederick  Herman  of  their 
shares  of  the  grain  upon  such  harvesting.     And  the  said  lessee 
doth  hereby  agree  to  pay  the  said  rent  to  the  said  lessor  and  de- 
liver to  him  his  share  of  the  said  grain  at  the  time  aforesaid,  at 
or  in  said  barn  or  at  such  other  place,  within  said 
as  said  lessor  may  in  writing  from  time  to  time  direct,  without 
demand  being  made  therefor,  and  that  he  will  not  assign  this 
lease  nor  underlet  the  said  premises,  or  any  part  thereof,  or  use 
or  occupy  the  same  other  than  as  a  farm  without  the  written 
consent  of  the  said  lessor  first  had  and  obtained,  and  during  the 
said  term  will  keep  said  premises  in  good  condition,  order  and 
repair,  and  at  the  termination  of  said  term  will  deliver  up  the 
said  premises  in  as  good  condition,  order  and  repair  as  the  same 


Forms.  337 

now  are,  reasonable  wear  and  tear  and  casualties  which  may- 
happen  by  fire  or  otherwise  excepted.  And  the  said  lessee  fur- 
ther agrees  that  if  the  rent  shall  remain  unpaid  on  any  day 
on  which  the  same  ought  to  be  paid,  then  the  lessor  may  enter 
the  premises  and  proceed,  by  distress  and  sale  of  the  goods 
there  found,  to  levy  the  rent  and  all  costs  and  officer's  commis- 
sions. The  said  lessee  further  agrees  that  all  goods  on  the  said 
premises,  and  for  thirty  days  after  removal,  shall  be  liable  to 
distress  for  rent  and  hereby  waives  the  benefit  of  all  exemption 
laws  in  relation  thereto.  And  said  lessee  further  agrees  that 
this  waiver  shall  extend  and  be  applicable  to  any  process,  exe- 
cution or  executions  that  may  be  issued  in  any  and  all  suits, 
actions  or  proceedings,  for  the  collection  of  rent  due  and  in 
arrear,  and  for  damages  for  the  nonfulfilment  of  any  of  the 
covenants  herein  contained.  And  it  is  further  agreed,  that  if 
the  said  rent  or  grain  shall  at  any  time  be  in  arrear  and  unpaid 
or  undelivered,  or  if  the  said  lessee  shall  underlet  said  premises 
or  any  part  thereof,  or  assign  this  lease,  or  in  case  of  an  assign- 
ment of  the  lease  by  operation  of  the  law,  or  if  he  shall  use  the 
said  premises  otherwise  than  as  above  expressed  and  provided,  or 
shall  not  well  and  truly  perform  and  fulfil  all  and  every  the 
covenants  and  agreements  herein  contained  on  the  part  of  the 
lessee  to  be  performed  and  kept,  or  in  case  the  lessee  shall  die; 
or  in  case  of  a  levy  by  execution  on  the  lessee's  right  or  interest 
in  the  crops,  then  this  lease  shall,  at  the  option  of  the  said 
lessor,  cease  and  absolutely  determine,  and  any  attorney  may  im- 
mediately thereafter,  as  attorney  for  the  said  lessee,  at  the  sole 
request  of  the  said  lessor,  sign  an  agreement  for  entering  in  any 
competent  court,  an  amicable  action  and  judgment  in  ejectment 
(without  any  stay  of  execution  or  appeal)  against  the  said  lessee 
and  all  persons  claiming  under  said  lessee  for  the  recovery  by  the 
said  lessor  of  possession  of  the  hereby  demised  premises,  with- 
out any  liability  on  the  part  of  the  said  attorney,  for  which  this 
shall  be  a  sufficient  warrant;  and  thereupon  a  writ  of  habere 
facias  possessionem  may  issue  forthwith  without  any  prior  writ 
or  proceeding  whatsoever,  and  the  lessee  hereby  releases  to  the 
lessor  all  errors  and  defects  whatsoever  in  entering  such  action  or 
judgment,  or  causing  such  writ  of  habere  facias  possessionem  to 
be  issued,  or  in  any  proceedings  thereon,  or  concerning  the  same ; 
and  hereby  agrees  that  no  writ  of  error  or  objection  or  exception 
shall  be  made  or  taken  thereto ;  and  a  copy  of  this  lease  verified 


33%  Conveyancing  in   Pennsylvania. 

by  affidavit,  being  filed  in  said  action,  it  shall  not  be  necessary 
to  file  the  original  as  a  warrant  of  attorney,  any  law  or  rule  of 
court  to  the  contrary  notwithstanding.  No  such  determination 
of  this  lease,  nor  taking  or  recovering  possession  of  the  premises, 
shall  deprive  the  lessor  of  any  other  action  against  the  lessee 
for  possession,  rent,  grain  or  damages.  All  rights  and  liabilities 
herein  given  to  or  imposed  upon  either  of  the  parties  hereto, 
shall  extend  to  the  heirs,  executors,  administrators,  successors 
and  assigns  of  such  party. 

In  witness  whereof,  the  said  parties  have  hereunto  set  their 
hands  and  seals  this  first  day  of  March,  one  thousand  nine  hun- 
dred twelve. 

Sealed    and    delivered    in    the^i 
presence  of  I     Frank  BoEliva.  (Seal.) 

Louis  Schmidt.      [     Frederick  Herman.    (Seal.) 
Otto  Kramer.       J 

252.     Letter  or  Power  of  Attorney  Appointing  a  Person  Attorney  in 
Fact  to  Act  for  and  Execute  Instruments  for  the  Principal. 

Know  all  Men  by  these  Presents,  That  I,  John  Jones,  of 
the  City  of  Philadelphia,  merchant,  have  made,  constituted,  and 
appointed,  and  by  these  presents  do  make,  constitute,  and  appoint, 
James  Black,  of  Philadelphia,  my  true  and  lawful  attorney,  for 
me,  and  in  my  name,  place  and  stead,  to  enter  into  and  take 
possession  of  all  messuages,  lands,  tenements,  hereditaments, 
and  real  estate  whatever,  in  (here  describe  the  lands,),  to  or 
in  which  I  am  now  possessed,  seised  or  am  or  in  any  way  entitled 
or  interested;  and  to  grant,  bargain,  and  sell  the  same,  or  any 
part  or  parcel  thereof,  for  such  sum  or  price  and  on  such  terms 
as  to  him  shall  seem  meet ;  and  for  me  and  in  my  name  to  make, 
execute,  acknowledge,  and  deliver  good  and  sufficient  deeds  and 
conveyances  for  the  same,  either  with  or  without  covenants  and 
warranty;  and,  to  let  and  demise  the  said  real  estate  for  the  best 
rent  that  can  be  procured  for  the  same;  and  to  ask,  demand, 
recover,  and  to  receive  all  sums  of  money  which  shall  become 
due  and  owing  to  me  by  means  of  such  bargain,  sale,  or  lease, 
and  to  take  all  lawful  ways  and  means  for  the  recovery  thereof ; 
to  compound  and  agree  for  the  same,  and  to  execute  and  deliver 
sufficient  discharges  and  acquittances  therefor.     (If  it  is  desired 


Forms.  339 

to  permit  the  attorney  to  substitute  another  to  act  in  his  absence, 
insert  also  this  clause :  With  power  to  substitute  one  or  more  at- 
torney or  attorneys  under  him  in  or  concerning  the  premises  or 
any  part  thereof,  and  the  same  at  his  pleasure  to  revoke.) 
Giving  and  granting  unto  my  said  attorney  (or  his  substitute  or 
substitutes)  full  power  and  authority  to  do  and  perform  all  and 
every  act  and  thing  whatsoever,  requisite  and  necessary  to  be 
done  in  and  about  the  premises,  as  fully  to  all  intents  and  pur- 
poses as  I  might  or  could  do,  if  personally  present;  hereby  rati- 
fying and  confirming  all  that  my  said  attorney  (or  his  substitute 
or  substitutes)  shall  lawfully  do  or  cause  to  be  done  by  virtue 
hereof. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal, 
this  first  day  of  July,  in  the  year  of  our  Lord  one  thousand  nine 
hundred  and  eight. 

Signed,  sealed  and  delivered  in" 

the  presence  of 

1X7  t>  >  John  Tones.     (Seal.) 

William  Blinn. 

Oscar  Flinn. 

It  is  advisable  to  record  such  letter  of  attorney  and  in  order 
to  do  so  see  that  it  is  acknowledged.  The  form  of  acknowledg- 
ment may  be  as  follows  : — 

State  oe  Pennsylvania 
County  of  Philadelphia 


,) 


ss: 


Before  me  the  subscriber,  a  notary  public  of  the  Common- 
wealth of  Pennsylvania,  residing  in  Philadelphia,  personally  ap- 
peared John  Jones,  who  in  due  form  of  law  acknowledged  the 
foregoing  to  be  his  act  and  deed  to  the  intent  that  the  same  might 
be  recorded  as  such. 

William  Blinn, 
Notary  Public. 

A  power  of  attorney  need  not  be  acknowledged  before  a  notary  public 
to  make  it  valid.    But  if  it  is  desired  to  record  it,  it  must  be  acknowledged. 

253.    Letter  of  Substitution. 

Where  the  attorney  of  fact  is  given  power  to  substitute  another 
to  avail  himself  of  this  substitution  he  should  execute  the  fol- 
lowing general  letter  of  substitution. 


340  Conveyancing  in   Pennsylvania, 

general  letter  oe  substitution. 

To  all  persons  to  whom  these  presents  shall  come,  greeting: 
Whereas,  John  Jones,  of  the  City  of  Philadelphia,  State  of  Penn- 
sylvania, merchant,  in  and  by  a  certain  instrument  of  writing  or 
letter  of  attorney,  bearing  date  the  first  day  of  July,  in  the  year 
of  our  Lord  one  thousand  nine  hundred  and  eight,  did  make,  con- 
stitute and  appoint  James  Black,  to,  &c,  (as  in  the  original 
power),  as  in  and  by  the  said  letter  of  attorney,  which  is  here- 
unto annexed  (or,  recorded,  &c),  relation  being  thereto  had, 
appears :  Now  know  ye,  that  I,  the  said  James  Black,  have  made, 
appointed  and  substituted,  and  bythese  presents,  by  virtue  of  the 
power  and  authority  given  to  me  by  the  said-recited  letter  of  at- 
torney, do  make,  appoint  and  substitute  John  Jacobs,  of  the 
City  of  Philadelphia,  State  of  Pennsylvania,  to  be  the  true  and 
lawful  attorney  of  the  said  John  Jones,  the  constituent  in  the 
foregoing  letter  of  attorney  named,  to  do,  execute  and  perform 
all  such  acts,  deeds,  matters  and  things,  as  shall  and  may  be 
requisite  and  necessary  to  be  done  and  performed  for  effecting 
the  purposes  and  objects  in  the  said  letter  of  attorney  contained, 
as  fully  and  effectually,  in  all  respects  and  to  all  intents  and 
purposes,  as  I  myself  might  or  could  do,  in  virtue  of  the  power 
and  authority  aforesaid,  if  personally  present;  hereby  ratifying 
and  confirming  all  and  whatsoever  my  said  substitute  may  law- 
fully do  by  virtue  hereof. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal, 
this  second  day  of  September,  in  the  year  of  our  Lord  one  thou- 
sand nine  hundred  and  eight. 

Signed,  sealed  and  delivered  in 

the  presence  of  I  John  Jones.     (Seal.) 

William  Blinn. 
Oscar  Flinn. 

State  oe  Pennsylvania,    }      . 
County  oE  Philadelphia,  j 

Before  me  the  subscriber,  a  notary  public  of  the  Common- 
wealth of  Pennsylvania,  residing  in  Philadelphia,  personally  ap- 
peared John  Jones,  who  in  due  form  of  law  acknowledged  the 


Forms.  341 

foregoing  to  be  his  act  and  deed  to  the  intent  that  the  same  might 
be  recorded  as  such. 

William  Blinn, 
Notary  Public. 
Commission  expires,  etc. 

See  note  to  form,  Par.  252,  page  339,  as  to  necessity  for  acknowledgment. 

254.  Letter  or  Power  of  Attorney  to  Satisfy  Mortgage. 

I,  John  Brown,  assignee  of  Richard  Smith,  the  mortgagee 
named  in  a  certain  indenture  of  mortgage  executed  and  given  by 
Simon  Large,  to  secure  the  payment  of  two  thousand  dollars, 
with  interest,  which  mortgage  is  dated  the  first  day  of  April, 
19x54,  and  recorded  in  the  recorder's  office  of  Bucks  county,  in 
Mortgage  Book  No.  98,  page  65,  and  the  assignment  whereof  is 
recorded  in  the  same  office  in  Mortgage  Book  No.  300,  page  265, 
do  hereby  acknowledge  that  I  have  received  payment  of  the  full 
amount  due  upon  and  secured  by  said  mortgage ;  and  I  do  hereby 
appoint  and  authorize  John  L,.  Jones,  Esq.,  as  my  attorney,  to 
enter  satisfaction  upon  the  record  thereof  as  effectually  as  I 
could  do  if  personally  present. 

Witness  my  hand  and  seal  the  12  day  of  May,  A.  D.  1910. 

Witnesses : 

CD      ) 

'     "      >  John  Brown.    (Seal.) 

255.  Revocation  of  Letter  of  Power  of  Attorney. 

To  all  persons  to  whom  these  presents  shall  come,  I,  M.  J.,  of 
Philadelphia,  send  greeting:  Whereas  I,  the  said  M.  J.,  did  here- 
tofore, by  a  certain  instrument  in  writing  or  letter  of  attorney, 
empower  I.  C,  of  Philadelphia,  to  be  my  attorney,  in  my  name 
and  for  my  use,  to  recover  and  receive  all  such  moneys,  debts 
and  effects  whatsoever,  as  were  due,  owing  or  payable  unto  me 
by,  &c,  (as  in  the  power)  ;  and  to  do  all  other  matters  and 
things,  as  fully  as  I  myself  might  or  could  do,  for  that  purpose, 
&c,  or  to  that  or  the  like  effect,  as  by  the  same  writing,  relation 
being  thereunto  had,  at  large  appears:  Now  know  ye,  that  I,  the 
said  M.  J.,  for  divers  good  causes,  and  valuable  considerations 
me  thereunto  moving,  have  revoked,  recalled,  countermanded,  and 
made  void,  and  by  all  these  presents  do  revoke,  recall,  countermand 
and  to  all  intents  and  purposes  make  null,  void  and  of  none 


342  Conveyancing   in   Pennsylvania. 

effect,  the  said  recited  writing  or  letter  of  attorney,  and  all 
powers  and  authorities  therein  and  thereby  given  and  granted, 
and  all  other  matters  and  things  therein  or  in  any  of  them  con- 
tained; and  all  acts,  matters  and  things  whatsoever  which  shall 
or  may  be  acted,  done  or  performed  by  virtue  or  means  thereof 
in  any  manner  whatsoever.  (If  another  attorney  is  appointed, 
continue  as  follows: — "And  further  know  ye,  that  I,  the  said 
M.  J.,  do  by  these  presents  make,  name,  constitute  and  appoint, 
and  in  my  place  and  stead  put  and  depute,  J.  M.,  of  Philadelphia, 
to  be  my  true  and  lawful  attorney,  for  me  and  in  my  name,  &c," 
as  in  the  form  of  letter  of  attorney  desired.) 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal, 
this  first  day  of  October,  in  the  year  of  our  Lord  one  thousand 
nine  hundred  and  three. 
Signed,  sealed  and  delivered  in 

the  presence  of    ^    ^    ^  M   j      (SeaL) 

M.  J.  P. 

256.  Sci.  Fa.  Mortgage,  Bond  and  Warrant  (Usual  Form). 
See  form  of  mortgage,  Par.  jj,  page  96. 

See  form  of  bond  and  warrant,  Par.  80,  page  104. 

257.  Building  and  Loan  Association  Mortgage  and  Bond  and  War- 

rant. 
See  form  of  mortgage  and  bond,  Par.  94,  page  119. 

258.  Form  of  Corporation  Sci.  Fa.  Mortgage. 

The  corporation  sci.  fa.  mortgage  is  similar  in  form  to  the 
ordinary  mortgage  of  individual  to  individual.  See  form,  page 
96.  Use  form  referred  to,  except  add  the  words  "successors 
and  assigns"  to  the  name  of  the  corporation  instead  of  "heirs 
and  assigns."  Take  care  also  where  the  mortgage  is  made  by  a 
corporation  to  use  the  corporation  form  of  acknowledgment. 
See  form  Par.  211,  page  269. 

259.  Form  of  Corporation  Mortgage  to  Trustee  to  Secure  Bond  Issue. 
A  corporation  mortgage  or  a  deed  of  trust  to  secure  a  bond 

issue  should  set  forth  and  recite  in  detail  the  authorization  and 
consent  of  the  stockholders.  It  should  also  set  forth  a  form  of 
the  bond  and  certificate  to  trustee. 


Forms.  343 

The  following  is  full  and  complete  form  and  is  taken  from 
Eastman  on  Corporations,  Vol.  II  (2d  Ed.),  page  1472: 

Corporation  Mortgage;  or  Deed  of  Trust. 

This  Mortgage,  or  Deed  of  Trust,  dated  the  day 

of  ,  in  the  year  of  our  Lord  one  thousand  nine  hun- 

dred and  ,  and  executed  by  and  between  the  , 

a  corporation  under  the  laws  of  Pennsylvania,  having  its  principal 
office  in  the  ,  Pennsylvania,  (hereinafter  called  "The 

Company,")  party  of  the  first  part,  and  the 
Trust  Company,  also  a  corporation  under  the  laws  of  Penn- 
sylvania, having  its  principal  office  in  the  ,  Pennsyl- 
vania,  as  trustee    (hereinafter  called  "trustee,")    party  of  the 
second  part, 
WITNESSETH  : 

Whereas,  The  Company  is  a  corporation  duly  or- 

ganized and  existing  under  and  by  virtue  of  the  act  of  assembly 
of  the  Commonwealth  of  Pennsylvania,  entitled  "  ," 

and  the  supplements  thereto,  with  an  authorized  capital  stock  of 
dollars,  consisting  of  shares  of  the  par 

value  of  dollars  each ; 

And  Whereas,  Under  the  laws  of  Pennsylvania,  the 
company  is  authorized  and  empowered  to  increase  its  indebted- 
ness to  such  amount  as  it  shall  deem  necessary  to  accomplish, 
carry  on  and  enlarge  its  business  and  purposes,  and  to  secure 
the  payment  of  the  principal  and  interest  thereon  by  a  mortgage, 
or  deed  of  trust,  or  other  pledge  of  all  or  any  part,  or  parts,  of 
its  real  and  personal  property,  rights,  privileges  and  franchises, 
in  such  manner  and  upon  such  terms  as  its  board  of  directors 
may  determine,  provided  that  a  majority  of  the  stockholders  shall 
consent  to  such  increase  at  a  meeting  duly  convened  to  take 
action  in  relation  thereto; 

And  Whereas,    The  board  of  directors  of  the 
Company,  at  a  meeting  duly  convened  and  held  on  the 
day  of  ,  19       ,  by  a  resolution  duly  adopted  by  the 

affirmative  votes  of  all  the  members  of  said  board,  resolved  that 
the  company  deemed  it  necessary,  in  order  to  accom- 

plish and  carry  on  and  enlarge  its  business  and  purposes,  that 
its  indebtedness  should  be  increased  in  the  aggregate  to  the 
amount  of  dollars,  and  declared  its  purpose  to  au- 


344  Conveyancing  in   Pennsylvania. 

thorize  such  increase,  and  directed  that  the  question  of  such 
proposed  increase  of  indebtedness  should  be  submitted  to  the 
stockholders  for  their  approval ; 

And  Whereas,  At  a  meeting  of  the  -stockholders  of  the 
company,  duly  convened  and  held  on  the  day  of 

,19       ,  at  the  chief  office  of  the  com- 

pany, sixty  days  prior  notice  of  the  holding  of  which  meeting 
having  been  waived  by  all  the  stockholders  of  the 
company,  and  all  of  the  stockholders  of  the  com- 

pany being  present  in  person  or  by  proxy,  the  said  stockholders, 
in  the  manner  required  by  law  did  consent  to  the  increase  of  the 
indebtedness  of  the  company  from  to 

,  as  will  more  fully  appear  by  reference  to  the  elec- 
tion return  filed  in  the  office  of  the  secretary  of  the  common- 
wealth, at  Harrisburg,  Pennsylvania; 

And  Whereas,    The  board  of  directors  of  the 
company,  at  a  meeting  duly  convened  and  held  on  the 
day  of  ,   19       ,  unanimously  resolved  to  make  an 

issue  of  bonds  of  the  denomination  dollars,  each, 

payable  years  after  date,  in  gold  coin  of  the  United 

States,  of  the  present  standard  of  weight  and  fineness,  with 
interest  thereon,  payable  semi-annually,  in  like  gold  coin,  at  the 
rate  of  per  cent.  (     %)  per  annum,  and  that  the  said 

bonds  should  be  free  from  tax,  and  should  be  executed  under  the 
corporate  seal  of  this  company,  and  signed  by  the  president,  and 
attested  by  its  secretary,  and  that  interest  coupons  authenticated 
by  a  lithographed  fac  simile  of  the  signature  of  the  treasurer 
of  this  company,  should  be  attached  to  said  bonds,  covering  the 
semi-annual  installments  of  interest  thereon  and  evidencing  the 
obligation  to  pay  the  same,  and  that  the  said  bonds,  interest 
coupons,  and  trustee's  certificate  upon  said  bonds  should  be  of 
obstantially  the  following  form : 

(form  of  bond.) 

United  States  of  America. 

State  of  Pennsylvania. 

Company. 
First  mortgage  and  collateral  trust  per  cent, 

year  gold  bond. 


Forms.  345 

No.  $ 

The  company,  a  corporation  under  the  laws  of 

Pennsylvania,  for  value  received,  promises  to  pay  to  the  bearer, 
or,  if  registered,  to  the  registered  holder  hereof,  at  the  office  of 
the  trust  company,  in  the  city  of  ,  Penn- 

sylvania, ($  )   dollars,  in  gold  coin  of  the 

United  States  of  America,  of,  or  equivalent  to,  the  present 
standard  of  weight  and  fineness,  on  the  day  of 

A.  D.  ,  and  to  pay  interest  thereon  semi- 

annually, at  the  rate  of  per  cent.  (       % )  per  annum, 

payable  in  like  gold  coin,  at  the  same  place,  on  the  first  days  of 
and  of  each  year,  on  the  presentation 

and  surrender  of  the  interest  coupons  hereto  annexed,  as  they 
severally  mature ;  and  the  maker  hereof  further  agrees  that  this 
bond,  and  the  principal  and  interest  thereof,  shall  be  free  from 
tax,  and  that  every  installment  of  the  interest  and  the  principal 
thereof  shall  be  paid  in  full,  without  any  deduction  for  any 
taxes,  or  charges  in  the  nature  thereof,  that  shall  be  payable  on 
this  bond,  or  the  principal  or  interest  thereof,  or  that  shall  be 
required  to  be  retained  therefrom. 

This  bond  is  one  of  an  authorized  issue  of  bonds, 

all  of  like  date,  tenor  and  amount,  and  numbered  consecutively 
from  one  ( i )  to  (         ) ,  inclusive  of  both  numbers, 

and  the  payment  of  all  of  said  bonds,  and  the  interest  thereon, 
is  equally  and  ratably  secured,  without  any  preference,  priority 
or  discrimination,  and  without  regard  to  the  actual  time  of  issue 
thereof,  by  a  first  mortgage,  or  deed  of  trust,  duly  executed  and 
delivered  by  the  maker  hereof  to  the  trust  company, 

of  ,  trustee,  upon  the  property,  real  and  personal,  and 

franchises,  now  or  hereafter  belonging  to  the  maker  hereof,  and 
by  a  collateral  trust  pledge,  under  said  mortgage,  or  deed  of 
trust,  of  ;  and  all  of  said  bonds  are  made  and  issued 

subject  to  the  provisions  of  said  mortgage,  or  deed  of  trust,  and 
reference  is  made  thereto  with  like  effect  as  if  the  same  were 
herein  fully  set  forth. 

This  bond  shall  pass  by  delivery,  unless  registered  in  the 
owner's  name,  and  such  registry  noted  on  the  bond  by  the  com- 
pany's registrar,  after  which  no  transfer  shall  be  valid  unless 
made  on  the  company's  books  by  the  registered  owner  and  simi- 
larly noted  on  the  bond ;  and  it  may  be  discharged  from  registra- 
tion by  being  registered  to  bearer,  after  which  it  shall  be  trans- 


346  Conveyancing  in   Pennsylvania. 

ferable  by  delivery,  but  it  may  again  be  registered  as  before. 
The  registry  of  this  bond  shall  not  restrain  the  negotiability  of 
the  interest  coupons  by  delivery  merely,  and  if  default  be  made 
in  the  payment  of  any  interest  coupon  hereto  belonging,  for  a 
period  of  thirty  days  after  the  same  shall  have  become  due  and 
have  been  presented  for  payment,  the  principal  hereof  may  be 
made  due  and  payable  in  the  manner  provided  in  the  mortgage, 
or  deed  of  trust,  hereinbefore  mentioned. 

This  bond  is  issued  and  accepted  upon  condition  that  none 
of  the  officers  or  stockholders  of  the  company  shall 

be  held  personally  liable  for  the  payment  of  any  part  of  the  prin- 
cipal or  interest  hereof,  and  that  all  rights  of  action  to  enforce 
any  such  liability  are  waived  and  forever  released. 

Unless  authenticated  by  the  certificate  endorsed  hereon,  duly 
signed  by  the  said  trustee,  this  bond  shall  not  be  valid. 

In  Witness  Whereof,  The  company,  in  pursuance 

of  lawful  corporate  action  authorizing  the  same,  has  caused  its 
corporate  seal  to  be  hereto  affixed,  and  this  bond  to  be  signed 
by  its  president,  and  attested  by  its  secretary,  this 
day  of  ,  A.  D.  19 

Company. 

By 


Attest : 

(Seal.) 

$ 


President. 
Secretary. 


(form  of  interest  coupon. ^ 


The  company  promises  to  pay  to  the  bearer 

($         )    dollars,   free   from  tax,   at  the  office  of  the 
company,  in  the  city  of  ,  Pa.,  on  the 

day  of  ,  19       ,  being  six  months'  interest  on  its 

per  cent,  first  mortgage  gold  bond. 
No. 

Treasurer. 

(form  of  trustee's  certificate.) 

trustee's  certificate. 

It  is  hereby  certified,  that  this  bond  is  one  of  the  issue  of  bonds 
described  in  the  mortgage,  or  deed  of  trust,  within  mentioned. 

company,  trustee. 


Forms.  347 

By 

President. 
And  Whereas,  At  a  meeting  of  the  board  of  directors  of  the 
company,  duly  convened  and  held  on  the 
day  of  ,  19       ,  a  form  of  mortgage,  or  deed  of  trust, 

identical  with  this  instrument,  from  the  company 

to  the  company,  trustee,  was  submitted  and  read,  and 

said  board  of  directors  unanimously  resolved  that  a  mortgage,  or 
deed  of  trust,  of  the  form  submitted  and  read  to  said  meeting, 
should  be  executed  under  the  corporate  seal  of  the 
company,  signed  by  the  president  and  attested  by  the  secretary, 
and  acknowledged  and  delivered  to  the  company,  as 

trustee ; 

And   Whereas,     At    a   meeting   of    the   stockholders   of   the 
company,  duly  convened  and  held  on  the 
day  of  ,  19       ,  this  present  form  of  indenture  was 

submitted  and  read,  together  with  the  resolutions  adopted  by 
the  board  of  directors,  authorizing  and  directing  the  execution 
and  delivery  thereof  and  authorizing  and  directing  the  making 
and  issuing  of  the  bonds  intended  to  be  secured  thereby,  and  by 
resolutions  unanimously  adopted  by  the  stockholders  at  said 
meeting,  all  action  taken  by  the  board  of  directors,  in  relation 
to  the  making  and  issue  of  said  bonds  and  the  execution  and  de- 
livery of  the  said  mortgage,  was  ratified,  approved  and  con- 
firmed ; 

And  Whereas,  All  things  necessary  to  make  said  bonds,  when 
certified  by  the  trustee,  the  valid  and  binding  obligations  of  the 
company,  and  to  make  this  indenture  a  valid  and 
binding  mortgage  and  lien  on  the  property  hereinafter  described, 
have  been  done  and  performed,  and  the  making  and  issuing  of 
the  said  bonds,  and  the  execution  of  this  indenture  have  been  in 
all  respects  duly  authorized; 

And  Whereas,  The  trust  company,  of 

Pa.,  is  a  corporation  organized  and  existing  under  the  laws  of 
the  State  of  Pennsylvania,  with  power  to  receive  and  execute  the 
trust  of  this  indenture  and  it  has  agreed  to  accept  the  same ; 

Now,  Therefore,  The  said  company,  the  party  of 

the  first  part  hereto,  in  consideration  of  the  premises  and  the 
sum  of  one  dollar  to  it  in  hand  paid  by  the  said  trustee,  party 
of  the  second  part  hereto,  the  receipt  of  which  is  hereby  acknowl- 
edged, has  granted,  bargained,  sold,  aliened,  remised,  released, 


348  Conveyancing   in   Pennsylvania. 

conveyed,  assigned,  transferred,  set  over  and  confirmed,  and  by 
these  presents  does  grant,  bargain,  sell,  alien,  remise,  release,  con- 
vey, assign,  transfer,  set  over  and  confirm  unto  the  said  trus- 
tee, and  to  its  successor  or  successors,  in  the  trust  hereby  created, 
and  to  its,  his  or  their  successors,  heirs  and  assigns,  forever, 

All  the  real  and  personal  property  rights,  privileges  and  fran- 
chises, which  the  company,  party  of  the  first  part, 
now  owns,  or  hereafter  acquires,  and  including,  among  other 
things,  the  following,  to  wit: 

Together  with  all  and  singular  the  improvements,  ways,  rights, 
liberties,  privileges,  hereditaments  and  appurtenances  whatsoever 
thereunto  belonging  or  in  any  wise  appertaining,  and  the  income, 
rents,  issues  and  profits  thereof,  and  all  the  estate,  right,  title, 
interest,  property,  claim  and  demand  whatsoever  of  the  said 
company,  party  of  the  first  part,  in  law,  and  equity, 
or  otherwise,  howsoever,  of,  in,  and  to  the  same,  and  every  part 
thereof. 

To  Have  and  to  Hold  all  and  singular  the  property  hereinbe- 
fore mentioned  and  described,  or  intended  so  to  be,  and  also  all 
the  property  that  shall  hereafter  become  subject  to  the  provisions 
of  this  indenture,  with  all  the  rights  and  appurtenances,  privileges 
and  franchises,  pertaining  thereto,  and  the  income  and  profits 
thereof,  unto  the  trustee,  its  successors  and  assigns. 

But  in  Trust,  Nevertheless,  Under  and  subject  to  the  pro- 
visions and  conditions  hereinafter  set  forth,  and  for  the  equal 
and  proportionate  benefit  and  security  of  all  present  and  future 
holders  of  the  bonds  and  interest  obligations  issued,  or  to  be 
issued,  under  and  secured  by  this  indenture,  and  for  the  enforce- 
ment of  the  payment  of  such  bonds  and  interest  obligations,  when 
payable,  in  accordance  with  the  provisions  thereof,  and  the 
covenants  and  provisions  in  this  indenture  contained,  without 
preference,  priority  or  distinction  as  to  lien,  or  otherwise,  of  any 
of  the  bonds  intended  to  be  secured  hereby,  over  any  other  of 
said  bonds,  by  reason  of  priority  in  time  of  the  issue  or  the  ne- 
gotiation thereof,  or  otherwise. 

And  it  is  Hereby  Covenanted  and  Declared  that  all  the 
bonds,  with  the  interest  coupons  thereto  belonging,  and  intended 
to  be  secured  hereby,  shall  be  issued,  certified  and  delivered,  and 
that  all  the  property  and  shares  of  stock  pledged  and  made  sub- 
ject to  the  lien  of  this  indenture,  shall  be  held  by  the  trustee 


Forms.  349 

subject  to  the  further  covenants,  conditions,  uses  and  trusts 
hereinafter  set  forth ;  and  it  is  covenanted  and  declared  between 
the  parties  hereto,  as  follows,  viz: 

article;  1. 

Section  1.  No  bond  nor  any  coupon  thereto  attached,  shall  be 
valid,  or  entitled  to  the  benefit  and  security  hereof,  unless  the 
same  shall  be  authenticated  by  a  certificate  indorsed  on  said 
bond,  signed  by  the  trustee,  that  it  is  one  of  the  issue  of  bonds 
described  in  this  mortgage  or  deed  of  trust,  and  such  certificate 
so  authenticated  shall  be  conclusive  and  the  only  evidence  that 
the  bond  upon  which  it  is  indorsed  is  duly  issued  hereunder 
and  entitled  to  the  benefit  and  security  of  this  indenture.  All 
bonds  at  any  time  issued  hereunder  shall  be  executed  under  the 
corporate  seal  of  the  company  and  be  signed  by  its 

present  or  any  future  president  and  attested  by  its  present  or 
any  future  secretary,  and  the  coupon  attached  to  the  bonds  shall 
bear  the  engraved  or  lithographed  fac-simile  of  the  signature 
of  the  present  treasurer  of  the  company,  which  shall 

evidence  its  obligation  to  pay  the  same. 

The  amount  of  bonds  hereby  secured  and  which  may  be  exe- 
cuted by  the  company  and  certified  by  the  trustee,  is 
limited  so  that  never  at  any  time  shall  there  be  outstanding  bonds 
hereby  secured  for  an  aggregate  principal  sum  exceeding 
dollars. 

Section  2.  Upon  the  execution  of  this  indenture,  and  the 
recording  thereof,  the  trustee  shall  forthwith  certify  and  deliver 
to  the  company,  upon  the  written  order  of  the  presi- 

dent thereof,  dollars,  face  value,  of  the  bonds  to 

be  issued  hereunder. 

Section  3.  Bonds  to  the  amount  of  dollars  of  the 

issue  secured  hereby,  shall  be  executed,  certified  by  the  trustee, 
and  be  issued  and  set  apart,  for  the  purpose  of  refunding  the 
like  amount  of  the  bonds  of  the  com- 

pany, and  bonds  to  the  amount  of  dollars,  of  the 

issue  secured  hereby,  shall  be  executed,  certified  by  the  trustee, 
and  be  issued  and  set  apart  for  the  purpose  of  refunding  the 
like  amount  of  bonds  of  the  company, 

and  bonds  to  the  amount  of  dollars  of  the  issue 

secured  hereby,  shall  remain  unissued,  and  shall  not  be  certified 


350  Conveyancing  in   Pennsylvania. 

at  the  time  of  the  execution  hereof,  and  shall  be  held  by  the 
trustee,  to  be  hereafter  certified  and  issued,  if  required  by  the 
company,  for  the  purpose  of  improving,  renewing 
and  making  betterments  and  extensions  to  its  ,  and 

all  bonds  so  to  be  certified,  issued  and  set  apart,  for  the  purpose 
of  refunding  other  bonds,  shall  be  deposited  with  and  held  by 
and  in  the  custody  of  the  trustee  hereunder,  and  shall  be  delivered 
by  the  trustee,  only  in  accordance  with  the  following  conditions 
and  provisions : 

(a)   It  is  understood  and  agreed  that  the  company 

has  the  right,  and  may,  at  any  time  or  times,  exchange  all  or  any 
part  of  the  bonds  of  this  issue  which  shall  be  certified,  issued 
and  set  apart  in  the  hands  of  the  trustee  for  the  purpose  of 
refunding  a  like  amount  of  other  bonds  as  aforesaid,  for  an 
equal  amount,  par  value,  of  any  of  the  bonds  so  to  be  refunded ; 
and  the  company  has  the  right,  and  may,  at  any  time 

or  times,  for  the  purpose  of  refunding  a  like  amount  of  other 
bonds  as  aforesaid,  use,  sell,  pledge  or  otherwise  dispose  of,  as 
it  shall  deem  proper,  any  of  the  bonds  which  shall  be  certified, 
issued  and  set  apart  in  the  hands  of  the  trustee  as  aforesaid, 
provided,  that  in  no  event  shall  the  trustee,  except  as  hereinafter 
provided,  allow  or  permit  any  of  the  bonds  set  apart  and  de- 
posited with  it,  as  aforesaid,  to  pass  from  its  custody,  unless  at  the 
same  time  there  shall  be  cancelled  and  delivered  to  the  trustees 
a  like  amount,  par  value,  of  the  bonds  to  be  refunded  as  afore- 
said, together  with  all  unpaid  coupons,  if  any,  thereto  belonging ; 
and  provided  further,  that  the  trustee  shall  not  be  required  to 
deliver  any  of  the  bonds  set  apart  in  its  hands  for  the  purpose 
of  refunding  other  bonds,  as  aforesaid,  except  upon  the  written 
order  of  the  company,  signed  by  its  president,  or 

treasurer. 

It  is  further  understood  and  agreed  that,  for  the  purpose  of 
aiding  in  said  refunding  and  enabling  the  company 

to  acquire  the  bonds  or  any  of  them  so  to  be  refunded  from  the 
present  or  any  future  holder  or  holders  thereof,  the 
company  has  and  shall  have  the  right  to  enter  into  any  agree- 
ment with  the  holder,  or  holders,  for  the  purchase  or  payment 
of  the  bonds  so  to  be  refunded  and  to  pledge  the  bonds  so  set 
apart  and  deposited,  as  security,  for  the  faithful  carrying  out 
of  any  agreement  so  made,  and  said  trustee,  on  request  of  the 
company,  shall  certify  and  deliver  the  bonds  so 


Forms.  351 

pledged  to  any  pledgee,  or  pledgees  thereof,  or  deposit  the  same 
with  any  incorporated  trust  company  that  may  be  agreed  upon, 
to  hold  the  same  subject  to  any  such  pledge,  or  if  so  required, 
the  trustee  may  hold  said  bonds,  so  to  be  set  apart  and  deposited, 
subject  to  any  such  pledge,  for  the  use  and  benefit  of  the  persons 
entitled  thereto. 

(b)  The  company  shall  not  require  to  be  certified 

or  issued  any  of  the  dollars  of  bonds  of  the  issue 

secured  hereby,  and  to  be  held  for  the  purpose  of  improving, 
renewing,  and  making  betterments  or  extensions  to  its 

,  unless  before  the  making  of  any  such  improvements, 
renewals,  betterments,  or  extensions,  the  company 

shall  submit  to  the  trustee  a  written  statement,  showing  the 
nature  and  character  of  the  proposed  improvements,  renewals, 
betterments  and  extensions,  and  the  estimated  cost  thereof,  as 
nearly  as  may  be,  together  with  such  further  information  in  re- 
lation to  the  desirability  and  importance  thereof  as  the  trustee 
shall  reasonably  require;  nor  unless  the  trustee  shall  deem  the 
proposed  improvements,  renewals,  betterments  or  extensions, 
as  the  case  may  be,  advisable  and  to  the  best  interest  of  the 
company  and  the  holders  of  the  bonds  of  the  issue 
secured  hereby  and  then  outstanding,  and  approve  thereof ;  and 
after  having  procured  the  approval  as  aforesaid,  and  after  having 
made  any  improvement,  renewal,  betterment  or  extension  to  its 
,  approved  as  aforesaid,  the  company 

may  require  so  many  of  the  said  dollars  of  bonds  to 

be  certified  and  issued,  as  may  be  necessary  for  such  purpose, 
and  it  shall  be  the  duty  of  the  trustee  to  certify  and  deliver  to  the 
company  the  amount  of  bonds  so  required,  provided 
that  the  company  shall  file  with  the  trustee  a  written 

statement,  verified  by  the  oath  of  the  president  and  treasurer,  or 
,  of  the  company,  showing  in  detail  the 

actual  cost  and  expenditure  incurred  in  making  such  improve- 
ment, renewal,  betterment,  or  extension,  as  the  case  may  be,  and 
that  additional  property,  equal  in  value  to  the  amount  named  in 
such  statement,  has  been  brought  within  the  lien  of  this  mort- 
gage; and  provided  further,  that  such  sworn  statement  shall 
be  accompanied  by  a  resolution  of  the  board  of  directors  of  the 
company  requiring  bonds  to  be  certified  and  issued 
for  the  purpose  of  making  such  improvement,  renewal,  better- 
ment or  extension,  and  not  exceeding  in  amount  the  sum  named 


352  Conveyancing  in   Pennsylvania. 

in  such  sworn  statement ;  and  provided  further,  that  in  no  case 
shall  any  of  such  bonds  be  certified  and  issued  for  the  purpose 
of  making  any  renewal  to  any  part  or  portion  of  the 
unless  such  renewal  shall  consist  in  introducing  something  new 
and  different  in  kind,  or  design,  from  the  old,  in  place  of  which 
the  new  shall  be  substituted,  the  intention  being  to  enable  the 
company,  subject  to  the  approval  of  the  trustee,  if 
occasion  arises,  to  resort  to  and  use  said  bonds,  if  deemed  expedi- 
ent, for  the  purpose  of  installing  new  and  superior,  or  more  eco- 
nomical devices  and  appliances  in  place  of  others,  but  in  no 
event  shall  any  of  said  bonds  be  used  for  making  any  such  re- 
newals as  are  usually  made  in  the  course  of  maintenance  and 
repairs. 

Section  4.  The  company  will  cause  to  be  kept,  at 

the  office  of  the  trustee,  in  the  city  of  ,  Pennsylvania, 

a  register,  or  registers,  for  the  registration  and  transfer  of  bonds 
issued  hereunder,  and  from  time  to  time  appoint  a  registrar, 
whose  duty  it  shall  be  to  keep  such  register,  or  registers,  and, 
upon  presentation,  to  register  any  such  bonds  therein,  subject  to 
such  reasonable  regulation  as  the  trustee  may  prescribe,  and  such 
register,  or  registers,  shall,  at  all  reasonable  times,  be  open  to 
the  inspection  of  the  trustee. 

Whenever,  after  any  of  such  bonds  shall  have  been  registered, 
if  the  same  be  presented  to  the  registrar  at  his  office,  accompanied 
by  the  delivery  of  a  written  instrument  of  transfer  in  a  form  to 
be  approved  by  the  company  and  executed  by  the 

registered  holder,  such  bond  may  be  transferred  upon  the  register 
by  the  registered  holder  in  person,  or  by  attorney,  and  such 
transfer  shall  be  noted  by  such  registrar  on  the  bond. 

The  registered  holder  of  any  such  registered  bond  shall  also 
have  the  right  to  have  the  same  registered  to  bearer,  in  which 
case  the  transferability  of  such  bond  by  delivery  shall  be  re- 
stored, and  thereafter  the  principal  of  such  bond  when  due,  shall 
be  payable  to  the  bearer  thereof ;  and  any  such  bond  registered  to 
bearer  may  be  registered  again  in  the  name  of  the  holder  with 
the  same  effect  as  if  a  first  registration  thereof.  Successive 
registrations  and  transfers  as  aforesaid  may  be  made  from  time 
to  time  as  desired,  and  each  registration  of  any  bond  shall  be 
noted  on  the  bond  by  the  registrar  appointed  as  aforesaid. 

Registration  of  any  bond,  however,  shall  not  affect  the  transfer 
ability  of  any  coupon  thereto  belonging  by  delivery  merely,  and 


Forms.  353 

payment  to  the  bearer  of  any  such  coupon  shall  discharge  the 

company  in  respect  of  the  interest  therein  mentioned, 

regardless  of  whether  or  not  the  bond  shall  have  been  registered. 

Section  5.  In  case  any  bond  issued  hereunder,  or  the  coupon 
thereto  appertaining,  shall  become  mutilated  or  lost,  or  be  de- 
stroyed, the  company  may  execute,  and  thereupon 
the  trustee  shall  certify  and  deliver  a  new  bond  of  like  tenor 
and  date,  and  bearing  the  same  serial  number,  and  with  coupons, 
in  lieu  of  and  in  substitution  for  the  bond  and  its  coupons  so  lost 
or  destroyed,  upon  receipt  by  the  trustee  of  satisfactory  evidence 
of  the  loss  or  destruction  of  such  bond  and  coupons,  and  upon 
receipt  also  of  satisfactory  indemnity. 

Section  6.  Until  the  permanent  bonds  to  be  issued  under  and 
secured  by  this  indenture  shall  have  been  prepared,  the 
company  may  execute,  and  upon  its  request  the  trustee  shall  cer- 
tify and  deliver,  in  lieu  of  such  permanent  bonds,  one  or  more 
temporary  bonds  of  the  denomination  of  dollars 

each,  or  of  any  multiple  or  multiples  thereof,  and  of  the  form 
and  tenor  of  the  bonds  to  be  issued  hereunder,  and  not  exceed- 
ing in  the  aggregate  dollars  in  amount  .  Upon  sur- 
render of  any  of  such  temporary  bonds  for  exchange,  the 
company  shall  issue,  and  upon  cancellation  of  such 
surrendered  bonds  the  trustee  shall  certify  and  deliver,  in  ex- 
change therefor,  lithographed  or  engraved  coupon  bonds  of  the 
denomination  and  tenor  hereinbefore  provided,  and  equal  in 
amount  with  the  temporary  bonds  surrendered ;  and  until  so  ex- 
changed, each  of  such  temporary  bonds  shall  be  entitled  to  the 
same  security  as  a  lithographed  or  engraved  bond  issue  here- 
under. 

ARTICLE  11. 

The  company  covenants  and  agrees,  as  follows : 

Section  1.  The  company  will  punctually  pay  the 

principal  and  interest  of  every  bond  issued  and  secured  here- 
under, at  the  times  and  the  place  and  in  the  manner  mentioned 
in  such  bonds,  and  the  coupons  thereto  belonging,  according  to 
the  true  intent  and  meaning  thereof,  without  deduction  from 
either  principal  or  interest  of  or  for  any  tax  or  taxes  lawfully 
imposed  thereon,  or  which  the  company  may  be  re- 

quired to  pay,  deduct  or  retain  therefrom,  under  or  by  reason 
of  any  present  or  future  law.     The  interest  on  the  bonds  shall 


354  Conveyancing   in   Pennsylvania. 

be  payable  only  upon  presentation  and  surrender  of  the  several 
coupons  for  such  interest,  as  they  respectively  mature,  and  when 
paid  such  coupons  shall  forthwith  be  cancelled. 

Section  2.  The  company  will,  from  time  to  time, 

pay  and  discharge  all  taxes,  licenses,  governmental  dues,  or 
charges  in  the  nature  of  any  thereof,  lawfully  imposed  upon,  or 
payable  by  it,  upon  any  of  the  property,  income,  indebtedness  or 
business  to  it  belonging,  and  upon  every  part  thereof,  and  so  that 
the  lien  of  this  indenture  and  the  priority  thereof  shall  be  in 
all  respects  fully  preserved;  and  the  company  will, 

from  time  to  time,  pay  and  discharge,  or  cause  to  be  paid  and  dis- 
charged, all  taxes,  licenses,  assessments,  and  governmental  dues, 
or  charges  in  the  nature  of  any  thereof,  lawfully  imposed  upon 
or  payable  by  the  or  any  thereof,  or  on  the  property 

income,  indebtedness  or  business  of  said  companies,  or  any 
thereof,  and  so  that  the  title  of  each  and  every  one  of  said  com- 
panies, to  their  respective  properties,  shall  be  at  all  times  kept 
and  preserved,  free  from  tax  liens ;  provided,  however,  that  the 
payment  shall  not  be  required  hereunder,  of  any  tax,  license, 
assessment,  governmental  due,  or  charges  in  the  nature  of  any 
thereof,  if  and  so  long  as  the  validity  thereof  shall  be  in  good 
faith  contested,  and  the  enforcement  thereof  delayed. 

Section  3.  The  company  covenants  and  agrees  that 

this  mortgage  is,  and  until  the  bonds  and  coupons  hereby  secured 
shall  have  been  fully  paid,  will  be  kept  a  first  lien  on  all  the  prop- 
erty, franchises  and  premises  described  in  the  granting  clauses 
hereof,  and  now  owned  by  the  company,  or  here- 

after acquired  by  it,  and  on  all  renewals  and  replacements  of  such 
property  and  all  additions,  betterments  and  improvements 
thereto ;  and  that  it  will  not  create  nor  suffer  to  be  created  or 
permit  to  exist  any  debt,  lien  or  charge  which  might  or  could  be 
prior  to  the  lien  of  these  presents  on  the  mortgaged  property,  or 
any  part  thereof,  or  upon  the  income  thereof ;  provided,  however, 
that  nothing  in  this  indenture  shall  prevent  the  com- 

pany from  acquiring  any  or  other  property  subject 

to  an  existing  mortgage  or  other  encumbrance  and  holding 
the  same  subject  to  such  mortgage  or  other  encumbrance. 

The  company  shall  and  will  at  all  times  so  long 

as  any  of  the  bonds  hereby  secured  or  intended  so  to  be  are  out- 
standing and  unpaid,  keep  its  buildings,  machinery,  fixtures  and 
appurtenances,  and  all  perishable  personal  property  usually  in- 


Forms.  355 

sured  by  such  companies,  insured  for  a  reasonable  amount  in 
and  by  responsible  insurance  companies,  against  loss  or  damage 
by  fire,  and  pay  all  premiums  upon  the  insurance  policies.  All 
such  policies  of  insurance  shall  be  taken  in  the  name  of  the 
company,  and  shall  have  indorsed  thereon  that  all 
loss  thereunder  shall  be  payable  to  the  trustee  hereunder,  for  the 
benefit  of  the  several  holders  of  the  bonds  hereby  secured. 

The  proceeds  of  any  such  policy  may,  at  the  option  of  the 
company,  be  used  in  repairing  or  replacing  at  the 
same  place  or  some  other  place,  the  property  so  damaged  or 
destroyed,  or  in  the  purchase  or  redemption  of  bonds  issued 
hereunder,  which  bonds,  when  redeemed,  shall  be  cancelled  by 
the  trustees,  and  shall  not  again  be  used  or  issued.  Before  any 
such  funds  are  paid  out  for  repairing  or  replacing  damaged  or 
destroyed  property,  the  company  shall  furnish  to  the 

trustee  a  verified  detailed  statement  showing  the  repairs  or  re- 
placements so  made,  and  the  amounts  expended  therefor,  and  the 
value  of  such  repairs  or  replacements  as  a  part  of  the  mortgaged 
premises.  The  value  of  the  repairs  or  replacements  shall  also,  if 
required  by  the  trustee,  be  appraised  by  an  appraiser  or  ap- 
praisers selected  by  the  trustee.  The  amount  of  such  moneys 
used  for  such  purpose  shall  never  exceed  the  amount  actually 
expended  therefor,  and  shall  in  no  event  exceed  the  value  fixed 
by  said  appraiser  in  case  an  appraisement  be  made. 

The  trustee  may,  however,  pay  out  such  moneys  from  time  to 
time  during  the  progress  of  such  repairs  or  replacements  to  the 
extent  that  the  work  done  and  materials  furnrshed  in  making  such 
repairs  or  replacements  in  the  judgment  of  the  trustee  justify 
the  making  of  such  payments. 

Section  6.  The  company,  its  successors  and  assigns, 

shall  and  will,  on  written  demand  of  the  trustee,  or  its  successor 
or  successors  in  the  trust,  at  any  time,  and  from  time  to  time, 
make,  do,  execute,  acknowledge  and  deliver  all  such  further 
acts,  deeds,  conveyances  and  assurances  in  the  law  as  may  be 
reasonably  required  for  effectuating  the  intention  of  these  pres- 
ents, and  for  the  better  assuring  or  confirming  unto  the  trustee, 
and  its  successors  in  the  trust  hereby  created,  upon  the  trusts 
and  for  the  purposes  herein  expressed,  all  and  singular,  the  prop- 
erty, real,  personal  and  mixed,  incomes,  franchises,  rights  and 
privileges  hereby  granted,  bargained,  conveyed,  assigned,  trans- 
ferred and  set  over,  or  intended  so  to  be,  either  now  owned  or 


356  Conveyancing   in   Pennsylvania. 

possessed,   or  hereafter  owned,   possessed   or  acquired  by  the 
company,  its  successors  or  assigns. 
Section  7.  The  company  covenants  that  it  will  do 

and  perform  all  such  acts  and  things  as  may  be  necessary  to  pre- 
serve its  corporate  franchises  and  to  enable  it  to  own,  maintain 
and  operate  the  mortgaged  property  and  premises. 

ARTICLE  in. 

The  company  covenants  that  it  will  from  time  to 

time,  assign,  transfer  and  deliver  unto  the  trustee,  as  additional 
security  for  the  bonds  issued  or  to  be  issued  hereunder,  all  shares 
of  stock  of  other  corporations  which  it  may,  at  any  time,  here- 
after acquire ;  and  all  such  shares  of  stock  so  assigned,  trans- 
ferred, and  delivered  to  the  trustee  shall  be  held  by  the  trustee 
for  the  benefit  and  security  of  the  several  holders  of  the  bonds 
issued  hereunder,  and  shall  be  subject  to  the  trusts  of  this  in- 
denture, as  fully  and  completely  as  though  specifically  assigned, 
transferred,  and  delivered  to  the  trustee  at  the  execution  hereof. 
And  as  to  all  shares  of  stock  assigned,  transferred  and  delivered 
to  the  trustee,  either  at  the  time  of  the  execution  hereof,  or  any 
subsequent  time,  or  times,  the  following  additional  covenants  and 
provisions  are  hereby  made,  viz : 

(1)  It  shall  be  the  duty  of  the  trustee  to  see  that  the  shares 
of  stock  of  every  corporation  transferred  to  it  for  the  purpose 
of  this  trust,  are  duly  and  properly  assigned  to  it  for  the  said 
trustee,  or  its  nominee,  upon  the  books  of  such  corporation,  and 
that  proper  certificates  therefor  are  issued  by  the  corporation, 
and  the  transfers  on  the  books  shall  be  to  the  com- 
pany, or  its  nominee,  as  "trustee  and  pledgee,  under  an  indenture 
made  by  company,  dated  ."  The  same 
shall  also  appear  at  length  on  the  certificates  of  stock. 

(2)  The  trustee  shall  file  with  the  several  corporations,  whose 
shares  of  stock  are  so  transferred,  standing  orders  to  pay  over 
to  the  company,  from  time  to  time,  all  dividends 
which  shall  be  payable  on  the  said  shares  of  stock,  and  the 

company  shall  collect  and  receipt  for  said  dividends. 
If  default  be  declared  against  the  company,  as  herein 

provided,  the  trustee  may,  in  addition  to  the  other  remedies  in 
such  case  provided,  revoke  such  orders  and  collect  and  receive  all 
such  dividends  thereafter  payable  on  such  shares  of  stock.    All 


Forms.  357 

sums  so  collected  or  received  by  the  trustee,  after  deducting  all 
expenses  incurred  by  the  trustee  in  the  premises,  shall  be  applied 
by  the  trustee  as  follows :  In  case  the  principal  of  the  bonds 
hereby  secured  shall  not  have  become  due  (1)  to  the  payment 
of  any  interest  in  default  upon  the  bonds  hereby  secured  in  the 
order  of  the  maturity  of  the  installments  of  such  interest,  with 
interest  on  the  overdue  instalments  thereof  at  the  rate  of 
(  )  per  annum,  and  (2)  to  the  payment  of  any 
other  sums  that  then  shall  be  due  and  payable  from  the 
company  under  the  provisions  of  this  indenture;  but  in  case  the 
principal  of  the  bonds  hereby  secured  shall  have  become  due 
by  declaration  or  otherwise,  then  such  moneys  shall  be  applied, 
first,  to  the  payment  of  the  accrued  interest,  in  the  order  of  the 
maturity  of  such  interest  installments,  and  next  to  the  payment 
of  the  principal  of  all  bonds  hereby  secured,  without  discrimina- 
tion or  preference.  After  any  such  default  shall  have  been  made 
good  or  shall  have  been  waived,  the  right  of  the 
company  to  receive  and  collect  such  dividends  on  such  stocks 
and  the  duty  of  the  trustee  to  execute  such  assignments  and 
orders  shall  revive,  and  shall  continue  as  though  such  default 
had  not  taken  place. 

(3)  Unless  there  shall  be  some  continuing  default  that  shall 
have  been  declared  against  the  company,  as  provided 

in  this  indenture,  the  company  shall  have  the  right, 

except  as  hereinafter  limited,  to  vote  upon  all  shares  of  stock 
which  shall  have  become  subject  to  this  indenture  for  all  pur- 
poses not  inconsistent  with  the  provisions  and  purposes  of  this 
indenture,  with  the  same  force  and  effect  as  though  such  shares 
were  not  subject  to  this  indenture;  and  the  trustee,  on  demand 
of  the  company,  shall,  from  time  to  time,  execute  and 

deliver  to  the  company,  or  to  such  person  or  persons 

as  may  be  designated  by  resolution  of  its  board  of  directors,  or 
in  the  absence  of  such  resolution,  upon  the  written  authority  of 
the  president  of  the  company,  such  proxies  or  powers 

of  attorneys  as  well  enable  the  company,  or  the  person  or  persons 
so  designated,  to  vote  upon  all  shares  of  stock  of  other  corpora- 
tions or  associations  that  shall  have  been  transferred  to  the  trustee 
hereunder,  at  all  meetings,  whether  general  or  special,  of  the 
shareholders  of  any  such  corporation  or  association,  to  the  same 
extent  and  with  the  same  effect  (subject  to  the  limitations  herein 


358  Conveyancing   in   Pennsylvania. 

contained)  as  though  such  shares  were  absolutely  owned  by  the 
company  and  were  not  subject  to  this  indenture. 
Nevertheless,  in  all  cases  where  the  shares  of  stock  so  trans- 
ferred to  the  trustee  constitute  a  majority  of  the  shares  of  stock 
of  any  corporation,  the  voting  power  of  such  shares  shall  not  in 
any  case  or  at  any  time  be  conferred  or  be  used  or  exercised 
for  the  purpose  of  authorizing  the  creation  of  any  secured  in- 
debtedness of  any  corporation  or  association,  a  majority  of  the 
shares  of  the  capital  stock  of  which  shall  be  held  by  the  trustee 
hereunder,  or  the  creation  of  any  lien  or  charge  upon  the  prop- 
erty or  franchises  of  such  corporation  or  association,  except 
to  secure  advances  or  loans  from  the  company,  to 

enable  such  corporation  or  association  to  make  betterments,  im- 
provements, or  extensions,  or  to  acquire  additional  property,  or 
to  pay  and  discharge  liens  or  charges  upon  the  property  or  fran- 
chises of  such  company.  Any  such  secured  indebtedness,  lien  or 
charge  created  as  security  for  advances  or  for  loans  from  the 
company,  and  the  evidence  thereof,  forthwith  shall 
be  transferred  by  the  company  to  the  trustee  here- 

under and  by  it  held  in  all  respects  as  though  the  same  had  been 
transferred  and  delivered  to  the  trustee  under  the  granting  clauses 
hereof,  at  the  time  of  the  execution  of  this  indenture. 

Until  a  default  shall  have  been  declared  against  the 
company,  as  provided  herein,  all  sums  which  shall  be  paid  in  sat- 
isfaction or  discharge  of  any  such  secured  indebtedness,  lien, 
charge  or  obligation,  shall  belong  to  and  be  received  by  the 
company,  and  shall  not  be  held  by  the  trustee.  A 
certificate  duly  verified  by  the  president  or  vice  president,  and  the 
treasurer  of  the  company,  stating  that  such  lien, 

charge,  indebtedness  or  obligation  has  been  paid  in  whole  or  in 
part,  shall  be  sufficient  proof  to  the  trustee  of  the  facts  therein 
stated,  and  upon  receipt  of  such  proof  that  such  lien,  charge,  in- 
debtedness or  obligation  has  been  fully  paid,  the  trustee  shall 
cancel  and  surrender  to  the  company  the  evidence  of 

such  lien,  charge,  indebtedness  or  obligation,  and  if  the  same  be 
of  record  shall  cause  satisfaction  thereof  to  be  entered  of  record. 
All  sums  paid  in  satisfaction  or  discharge  of  any  such  indebted- 
ness, lien,  charge  or  obligation,  and  received  by  the  trustee  after 
there  shall  have  been  a  default  declared,  as  provided  herein, 
shall  be  kept  by  the  trustee  in  a  separate  fund,  and  shall  be  used 
and  applied  by  the  trustee  in  the  same  manner  as  provided  in 


Forms.  359 

clause  two  (2)  of  this  section  with  reference  to  dividends  upon 
shares  of  stock  pledged  hereunder  received  by  the  trustee  after 
default  shall  have  been  declared. 

Whenever  requested  by  resolution  adopted  by  the  affirmative 
votes  of  at  least  two-thirds  of  the  directors  of  the 
company,  the  trustee  shall  vote  or  shall  execute  its  proxy  or 
power  of  attorney  to  vote  upon  the  shares  of  stock  of  other  com- 
panies held  by  it  under  this  indenture  in  favor  of  the  increase 
or  reduction  from  time  to  time  of  the  capital  stock  of  any  such 
company.  In  case  of  the  increase  of  the  capital  stock  of  any 
company,  the  greater  part  of  whose  capital  stock  shall  be  pledged 
hereunder,  the  company  forthwith  shall  assign,  trans- 

fer and  deliver  to  the  trustee  by  it  to  be  held  upon  the  trusts  of 
this  indenture  in  the  same  manner  as  though  assigned  and  trans- 
ferred and  delivered  to  the  trustee  at  the  date  of  the  execution 
hereof,  the  additional  fully  paid  capital  stock  of  such  company, 
or  such  part  thereof  as  shall  be  proportionate  to  the  part  of  the 
entire  capital  stock  of  such  company  previously  held  by  the  trus- 
tee hereunder. 

In  case  of  the  reduction  of  the  capital  stock  of  any  such  cor- 
poration, the  trustee  may  surrender  the  shares  necessary  for  the 
purpose  of  effecting  such  reduction,  or  such  part  thereof  as  shall 
be  proportionate  to  the  part  of  the  entire  capital  stock  of  such 
company  previously  held  by  the  trustee  hereunder. 

The  trustee  is  also  authorized  and  directed,  whenever  requested 
by  a  resolution  adopted  by  the  affirmative  votes  of  at  least  two- 
thirds  of  the  directors  of  the  company,  to  vote,  or 
execute  its  proxy,  or  power  of  attorney,  to  vote  upon  the  shares 
of  stock  of  any  company  pledged  hereunder,  in  favor  of  the 
merger  and  consolidation  of  such  company  with  any  other  com- 
pany with  which  any  merger  or  consolidation  may  be  lawfully 
made,  and  generally  to  vote  in  favor  of  the  exercise  of  any 
power,  now  or  hereafter  vested  in  any  company  whose  shares  of 
stock  are  pledged  hereunder,  provided  that,  in  the  opinion  of  the 
trustee,  such  power  may  be  exercised  without  detriment  to  the 
owners  and  holders  of  the  bonds  secured  hereby,  or  provided  that 
a  majority  of  such  bondholders  shall  assent  thereto  in  writing. 

(4)  At  any  time  in  its  discretion  the  trustee  may,  and  if  re- 
quested in  writing  by  the  company  shall,  consent  to 
the  extension  or  renewal  of  any  bonds  or  obligations  which  here- 
after shall  be  deposited  by  the  company  with  the 


360  Conveyancing  in   Pennsylvania. 

trustee  hereunder,  and  to  the  extension  or  renewal  of  any  mort- 
gage or  lien  securing  such  bonds  or  obligations.  The  trustee  may 
receive  the  opinion  of  any  counsel  as  conclusive  evidence  of  the 
existence  of  all  facts  authorizing  any  such  extension  or  renewal 
of  bonds  or  obligations. 

Section  2.  The  company  further  covenants  and 

agrees  that  if  any  company  of  whose  capital  stock  the  greater 
part  shall  be  pledged  hereunder,  while  the  greater  part  of  the 
capital  stock  is  so  pledged,  shall  fail  to  pay  any  taxes,  assessments 
or  other  charges  lawfully  imposed  upon  its  property,  or  upon 
the  business,  income,  indebtedness  or  profits  of  such  company, 
then  the  company  will  forthwith  pay  and  discharge 

the  same ;  provided,  however,  that  the  company  shall 

not  be  required  to  pay  any  such  tax,  assessment  or  charge,  so  long 
as  the  validity  thereof  shall  in  good  faith  be  contested,  unless 
such  payment  shall  be  necessary  to  prevent  forfeiture  or  loss  of 
any  property  of  such  company. 

Section  3.  The  company  further  covenants  and 

agrees  that  if  any  company  of  whose  capital  stock  the  greater 
part  shall  be  pledged  hereunder,  while  the  greater  part  of 
the  capital  stock  of  such  company  shall  be  pledged  here- 
under, shall  create  or  suffer  to  be  created,  or  permit  to  exist,  any 
lien  or  charge  upon  its  property  or  income,  or  create  or  suffer 
to  be  created,  or  permit  to  exist  any  indebtedness  other  than  (1) 
indebtedness  existing  at  the  date  of  transfer  and  pledge  of  such 
shares  of  stock  hereunder,  or  indebtedness  in  substitution  of  any 
secured  indebtedness  existing  at  such  date  or  (2)  indebtedness 
for  the  current  operating  expenses  of  such  company  during  a 
period  not  exceeding  six  months,  then  the  company 

forthwith  will  pay  and  discharge  the  same,  or  will  acquire  and 
transfer  the  same  to  the  trustee  for  the  further  security  of  the 
bonds  hereunder  in  the  same  manner  and  upon  like  conditions 
as  are  provided  in  clause  3  of  section  1  of  this  article  as  to  se- 
cured indebtedness  transferred  to  the  trustee. 

ARTICLE  iv. 

Section  1.  Until  some  continuing  default  shall  have  been  made 
in  the  due  and  punctual  payment  of  the  interest  of  the  principal 
of  the  bonds  hereby  secured,  or  of  some  part  of  such  interest 
or  principal  or  in  the  due  and  punctual  performance  of  some  cov- 


Forms.  361 

enant  or  condition  hereof,  obligatory  upon  the  com- 

pany, and  until  such  default  shall  have  continued  beyond  the 
period  of  grace,  if  any,  herein  provided  in  respect  thereof,  the 
company,  its  successors  and  assigns,  shall  be  suffered 
and  permitted  to  retain  actual  possession  of  all  the  property 
(except  shares  of  stock  to  be  delivered  to  and  held  by  the  trus- 
tee) that  may  be  conveyed  and  mortgaged  to  the  trustee,  and  to 
manage,  operate  and  use,  or  cause  to  be  managed,  operated  and 
used,  the  same,  and  every  part  thereof,  with  the  rights  and  fran- 
chises appertaining  thereto,  and  to  collect,  receive,  take,  use  and 
enjoy  the  tolls,  earnings,  income,  rents,  issues  and  profits  thereof. 
With  the  right  at  all  times  to  alter,  change,  add  to,  repair,  dis- 
pose of  and  replace  any  and  all  ,  machinery  and 
fixtures ;  provided  only  that  the  security  of  said  bonds  shall  not 
thereby  be  in  any  way  impaired  or  diminished. 

Section  2.  The  company  shall  maintain,  preserve 

and  keep,  or  cause  to  be  maintained,  preserved  and  kept,  the 
mortgaged  property  and  premises  and  every  part  thereof,  in 
thorough  repair,  working  order  and  condition,  and  supplied  with 
and  equipment,  and  will,  from  time  to  time,  make  or 
cause  to  be  made,  all  needful  and  proper  repairs,  replacements, 
additions,  betterments  and  improvements,  so  that  the  efficiency  of 
the  mortgaged  property,  and  every  part  thereof,  and  the  mort- 
gage security,  shall  at  no  time  be  impaired  or  diminished,  and 
that  the  business  thereof  shall  at  all  times  be  conducted  in  a  good 
and  business  like  manner. 

Section  3.  If  at  any  time  any  property,  subject  to  this  inden- 
ture, including  the  shares  of  stock  pledged  hereunder,  cannot  be 
advantageously  used  in  the  proper  and  judicious  operation  of  the 
business  of  the  company,  or  if  the  sale  or  disposition 

thereof  has  become  necessary  for  any  cause,  the  same  or  any  in- 
terest therein  may  be  sold,  or  exchanged  for  other  property,  and 
upon  the  requisition  of  the  company,  the  trustee 

shall  release  the  same  from  the  lien  and  effect  of  this  indenture, 
but  only  upon  the  following  provisions  and  conditions : 

(a)  The  necessity  and  propriety  of  such  sale,  exchange  or  dis- 
position shall  be  approved  by  a  person  or  persons  selected  or 
approved  by  the  trustee,  who  shall  make  a  report  in  writing  to 
the  trusee  stating  the  reasons  for  such  approval. 

(b)  Before  any  property  or  any  interest  therein  shall  be  re- 
leased, the  same  shall  be  appraised  by  an  appraiser,  or  by  more 


362  Conveyancing   in   Pennsylvania. 

than  one  appraiser,  who  shall  be  selected  or  approved  by  the 
trustee. 

(c)  In  case  of  such  sale  of  any  property,  or  of  any  interest 
therein,  the  price  or  proceeds  of  such  sale,  not  less  than  the 
value  of  such  property,  or  of  such  interest,  as  appraised  by  the 
appraisers,  or  a  sum  equal  to  such  price  or  proceeds,  shall  be 
deposited  with  the  trustee  hereunder  to  be  held  for  the  further 
security  of  the  bonds  hereby  secured  until  paid  over  or  applied  as 
hereinafter  provided. 

(d)  In  case  of  an  exchange,  other  property  appraised  by  an 
appraiser  or  appraisers  selected  or  approved  by  the  trustee,  to 
be  of  value  at  least  equal  to  the  appraised  value  of  the  property 
given  in  exchange,  shall  be  subject  to  the  lien  and  operation  of 
this  indenture,  free  and  clear  of  all  other  liens  or  encumbrances. 

The  moneys  received  by  the  trustee  upon  any  such  sale,  and 
any  moneys  received  by  the  trustee  upon  any  other  disposition 
of  any  property  subject  to  this  indenture  shall  be  applied  as  fol- 
lows: 

(1)  The  company,  under  the  direction  of  the  trus- 
tee, may  thereafter  expend  such  money  or  part  thereof,  in  the 
acquisition  of  real  estate  necessary  for  the  use  of  the 
company,  or  in  or  in  the  construction  of  plants  or 
buildings  necessary  or  useful  in  the  operations  of  the  company, 
which  lands,  extensions  and  additions  shall  forthwith  be  subject 
to  the  lien  of  this  indenture,  free  and  clear  of  all  other  liens  and 
encumbrances  and  claims  for  which  liens  might  be  claimed. 

Before  any  such  funds  are  paid  out  for  such  purpose,  the 
company  shall  furnish  to  the  trustee  a  verified 
statement  showing  the  amounts  actually  expended  by  the 
company,  and  for  what  property,  and  such  property  shall  also 
be  valued  by  an  appraiser  or  appraisers  selected  or  approved  by 
the  trustee.  The  amount  of  such  moneys  used  for  the  payment 
for  such  property  shall  not  exceed  the  amount  actually  expended 
by  the  company  therefor,  and  shall  in  no  event  ex- 

ceed the  value  of  such  property  as  fixed  by  such  appraiser  or  ap- 
praisers. 

(2)  Or,  if  so  requested  by  the  company,  the  trustee 
may  apply  such  proceeds,  or  any  part  thereof,  in  purchasing 
bonds  hereby  secured,  which  bonds  when  so  purchased  shall  be 
cancelled  by  the  trustee  and  shall  not  again  be  used  or  issued. 


Forms.  3^3 

article  v. 

Section  i.  No  coupon  belonging  to  any  bond  hereby  secured, 
which  in  any  way  at  or  before  maturity  shall  have  been  trans- 
ferred or  pledged,  separate  and  apart  from  the  bond  to  which 
it  relates,  shall,  unless  accompanied  by  such  bond,  be  entitled,  in 
case  of  a  default  hereunder,  to  any  benefit  of,  or  from  this  in- 
denture, except  after  the  prior  payment  in  full  of  the  principal 
of  the  bonds  issued  hereunder,  and  of  all  coupons  and  interest 
obligations  not  so  transferred  or  pledged. 

Section  2.  In  case  default  shall  be  made  (1)  in  the  payment 
of  any  interest  on  any  bond  or  bonds. hereby  secured  and  out- 
standing, and  any  such  default  shall  have  continued  for  a  period 
of  days,  or  (2)  in  case  default  shall  be  made  in  the  payment 

of  the  principal  of  any  of  the  bonds  hereby  secured  and  outstand- 
ing, or  (3)  in  case  default  shall  be  made  in  the  prompt  payment 
of  any  debt  or  charge  required  by  section  4  of  article  2  hereof  to 
be  paid  by  the  company,  or,  in  case  default  shall  be 

made  in  the  due  observance  or  performance  of  any  other  cove- 
nant or  condition  herein  required  to  be  kept  or  performed  by  the 
company,  and  any  such  last  mentioned  default  shall 
continue  for  a  period  of  days  after  written  notice 

thereof  to  the  company  from  the  trustee,  or  from  the 

holders  of  per  cent,  in  amount  of  the  bonds  hereby 

secured  and  then  outstanding,  specifying  wherein  such  default 
consists,  then  and  in  every  case  the  trustee  shall  declare  the 
principal  of  all  the  bonds  hereby  secured  and  then  outstanding  to 
be  due  and  payable  immediately;  and  upon  any  such  declaration 
the  same  shall  become  and  be  due  and  payable  immediately,  any- 
thing in  this  indenture  or  in  said  bonds  to  the  contrary  not- 
withstanding. 

This  provision,  however,  is  subject  to  the  condition  that  if  at 
any  time  after  the  principal  of  said  bonds  shall  have  been  so 
declared  due  and  payable,  all  arrears  of  interest  upon  all  such 
bonds,  with  interest  at  the  rate  of  per  centum  on  all  over- 

due installments  of  interest  shall  either  be  paid  by  the 
company  or  be  collected  out  of  the  mortgaged  premises,  before 
any  sale  of  the  mortgaged  premises  shall  have  been  made,  and 
every  other  default  incurred  by  the  company,  if,  any,  shall 

have  been  made  good,  then  and  in  every  such  case  the  holders  of 
a  majority  in  amount  of  the  bonds  hereby  secured  and  then  out- 


364  Conveyancing   in   Pennsylvania. 

standing  by  written  notice  to  the  company  and  to 

the  trustee  may  waive  such  default  and  its  consequences,  and  the 
holders  of  the  remainder  of  the  bonds  shall  be  bound  by  such 
waiver;  but  no  such  waiver  shall  extend  to  or  affect  any  subse- 
quent default  or  impair  any  right  consequent  thereon. 

Section  3.  In  case  default  shall  be  declared  against  the 
company,  as  provided  in  section  2  of  this  article,  the 
company,  upon  demand  of  the  trustee,  shall  and  will  forthwith 
surrender  to  the  trustee  the  actual  possession,  and  the  trustee 
shall  be  entitled  forthwith,  with  or  without  process  of  law,  to 
enter  into  and  upon  and  take  possession  of  all  and  singular  the 
property  and  premises  hereby  mortgaged,  or  pledged,  or  intended 
so  to  be,  and  each  and  every  part  thereof,  with  all  records,  books, 
papers  and  accounts  of  the  company,  and  to  exclude 

the  company,  and  its  agents  and  servants,  wholly 

therefrom,  and  it  shall  have,  hold  and  use  the  same,  controlling, 
managing  and  operating  by  its  superintendents,  managers,  re- 
ceivers, servants  and  other  agents,  or  attorneys,  the  said  prop- 
erty, with  the  appurtenances,  and  conducting  the  business  and 
operations  thereof  and  exercising  the  franchises  pertaining  there- 
to, and  making  from  time  to  time,  at  the  expense  of  the  trust 
estate,  all  repairs  and  replacements,  and  such  useful  additions, 
alterations  and  improvements  thereon  and  thereto  as  to  the  said 
trustee  may  seem  proper  and  judicious,  and  may  collect  and  re- 
ceive all  income,  rents,  issues  and  profits  of  the  same,  and  every 
part  thereof,  and  after  deducting  all  expenses  of  maintaining, 
managing  and  operating  said  property  and  conducting  the  busi- 
ness thereof,  and  of  all  repairs,  replacements,  additions,  altera- 
tions and  improvements  so  made,  and  all  payments  made  for 
taxes,  levies,  assessments,  insurance  premiums  and  other  proper 
charges  upon  said  property,  or  any  part  thereof,  and  as  well  just 
compensation  for  services  of  the  trustee,  its  agents,  clerks,  serv- 
ants, attorneys  and  counsel,  shall  apply  the  remainder  of  the 
money  so  received  by  its  as  follows : 

In  case  the  said  bonds  shall  not  have  become  due  by  maturity, 
and  if  every  default,  if  any,  declared  shall  have  been  waived,  or 
made  good,  as  provided  in  section  2  of  this  article,  such  moneys 
shall  be  paid  over  to  the  company,  or  as  it  may  in 

writing  direct ;  and  if  said  bonds  shall  have  become  due  at  ma- 
turity, or  such  default  shall  not  have  been  so  waived  or  made 


Forms.  36S 

good,  then  such  moneys  shall  be  applied  in  the  manner  pro- 
vided in  section  9  of  this  article. 

Section  4.  The  principal  of  the  bonds  secured  hereby  having 
become  due  at  maturity,  or  having  been  made  due,  as  in  this 
article  provided,  the  trustee,  in  its  discretion,  may,  after  entry  or 
without  entry  and  taking  possession,  and  shall,  if  so  requested  in 
writing  by  the  holders  of  per  cent,  in  amount  of  the 

bonds  then  outstanding  and  unpaid,  proceed  to  sell  at  public 
auction,  either  separately  or  as  a  whole,  unto  the  highest  and 
best  bidder,  all  and  singular  the  property  then  subject  to  the  lien 
of  this  indenture.  Any  such  sale  shall  be  made  at  public  auction 
in  the  or  at  such  other  place  and  at  such  time,  and 

upon  such  terms  as  the  trustee  may  fix  and  briefly  specify  in  the 
notice  of  sale  to  be  given  as  herein  provided ;  or  the  trustee  may 
proceed  to  protect  and  enforce  its  rights  and  the  rights  of  the 
bondholders  under  this  indenture  by  a  suit  or  suits  in  equity  or  at 
law,  whether  for  the  specific  performance  of  any  covenant  or 
agreement  contained  herein,  or  in  and  of  the  execution  of  any 
power  herein  granted,  or  for  any  foreclosure  hereunder,  or  for 
the  enforcement  of  any  other  appropriate  legal  or  equitable  rem- 
edy as  the  trustee  being  advised  by  counsel  learned  in  the  law 
shall  deem  effectual  to  protect  and  enforce  the  rights  aforesaid. 

The  trustee  may  adjourn,  from  time  to  time,  any  sale  by  it  to 
be  made  under  the  provisions  of  this  indenture,  by  announcement 
at  the  time  and  place  appointed  for  such  sale,  or  for  such  ad- 
journed sale,  and  without  further  notice  or  publication  it  may 
make  such  sale  at  the  time  and  place  to  which  the  same  shall  be 
so  adjourned. 

Section  5.  Notice  of  any  such  sale  pursuant  to  any  provision 
of  this  indenture  shall  state  the  time  and  place  when  and  where 
the  same  is  to  be  made,  and  shall  contain  a  brief  general  de- 
scription of  the  property  to  be  sold,  and  whether  the  same  is  to  be 
sold  in  parcels  or  in  one  lot,  and  shall  be  sufficiently  given  if  pub- 
lished once  in  each  week  for  successive  weeks  prior 
to  such  sale  in  daily  newspapers  of  general  circula- 
tion, published  in  the  ,  Pennsylvania,  and  also  in 
like  manner  in  daily  newspapers  of  general  circula- 
tion published  in                        ,  Pennsylvania. 

Section  6.  In  case  the  trustee  shall  have  proceeded  to  enforce 
any  right  under  this  indenture,  by  foreclosure,  entry  or  other- 
wise, and  such  proceedings  shall  have  been  discontinued  or  aban- 


366  Conveyancing  in   Pennsylvania. 

doned  because  of  any  waiver,  or  for  any  other  reason  or  shall 
have  been  determined  adversely  to  the  trustee,  then  and  in 
every  such  case  the  company  and  the  trustee  shall  be 

restored  to  their  respective  former  positions  and  rights,  in  re- 
spect to  the  mortgaged  property  and  all  rights,  remedies  and 
powers  of  the  trustee  shall  continue  as  though  no  such  proceed- 
ing had  been  taken. 

Section  7.  Any  such  sale  or  sales  made  under  or  by  virtue  of 
this  indenture,  shall  operate  to  divest  all  right,  title,  interest, 
claim  and  demand  whatsoever,  either  at  law  or  in  equity  of  the 
company  of,  in  and  to  the  property  so  sold,  and 
shall  be  a  perpetual  bar,  both  at  law  and  in  equity,  against  the 
company,  its  successors  and  assigns,  and  against  any 
and  all  persons  claiming  or  to  claim  the  property  sold,  or  any 
part  thereof,  from,  through  or  under  the  company, 

its  successors  or  assigns,  and  the  receipt  of  the  trustee  for  the 
consideration  money  paid  at  any  such  sale  shall  be  a  sufficient  dis- 
charge to  the  purchaser,  without  any  liability  upon  the  part  of  the 
purchaser  to  see  to  the  application  of  the  purchase  money,  or  to 
be  bound  to  inquire  as  to  the  authorization,  necessity,  expediency 
or  regularity  of  any  such  sale. 

Section  8.  In  case  of  such  sale,  whether  under  the  powers  of 
sale  hereby  granted  or  pursuant  to  judicial  proceedings,  the  prin- 
cipal sums  of  all  the  bonds  hereby  secured,  if  not  previously 
due,  shall  immediately  thereupon  become  due  and  payable,  any- 
thing in  said  bonds  or  in  this  indenture  to  the  contrary  notwith- 
standing. 

Section  9.  The  purchase  money,  proceeds  and  avails  of  any 
such  sale,  whether  made  under  the  power  of  sale  hereby  granted 
or  pursuant  to  judicial  proceedings,  together  with  any  other 
sums  which  then  may  be  held  by  the  trustee,  under  any  of  the 
provisions  of  this  indenture,  as  part  of  the  trust  estate  or  the 
proceeds  thereof,  shall  be  applied  as  follows : 

(1)  To  the  payment  of  the  costs  and  expenses  of  such  sale,  in- 
cluding a  reasonable  compensation  to  the  trustee,  its  agents,  at- 
torneys and  counsel,  and  of  all  expenses,  liabilities  and  advances 
made  or  incurred  by  the  trustee. 

(2)  To  the  payment  of  the  whole  amount  then  owing  or  un- 
paid upon  the  bonds  hereby  secured,  for  principal  and  interest, 
with  interest  at  the  rate  of  per  centum  per  annum  on 
the  overdue  installments  of  interest,  and  in  case  such  proceeds 
shall  be  insufficient  to  pay  in  full  the  whole  amount  so  due  and 


Forms.  367 

unpaid  upon  such  bonds,  then  to  the  payment  of  such  principal 
and  interest,  without  preference  or  priority  of  principal  over 
interest,  or  of  interest  over  principal,  or  of  any  instalment  of 
interest  over  any  other  instalment  of  interest,  but  ratably  to  the 
aggregate  of  such  principal  and  accrued  and  unpaid  interest,  sub- 
ject, however,  to  the  provisions  of  section  1  of  this  article. 

(3)   To  the  payment  of  the  surplus,  if  any,  to  the 
company,    its    successors   or   assigns,   or   to   whosoever   may   be 
lawfully  entitled  to  receive  the  same. 

Section  10.  In  case  of  any  sale  hereunder,  any  purchaser  for 
the  purpose  of  making  settlement  for  the  property  purchased, 
shall  be  entitled  to  use  and  apply  any  bonds,  and  any  matured  and 
unpaid  coupons  hereby  secured,  by  presenting  such  bonds  and 
coupons,  in  order  that  there  may  be  credited  thereon  the  sums  ap- 
plicable to  the  payment  thereof  out  of  the  net  proceeds  of  such 
sale  to  the  owner  of  such  bonds  and  coupons,  as  his  ratable  share 
of  such  net  proceeds,  after  making  any  deductions  which  may 
be  made  from  the  proceeds  of  sale,  for  costs,  expenses,  compen- 
sation and  other  charges ;  and  thereupon  such  purchaser  shall 
be  credited  on  account  of  such  purchase  price  payable  by  him, 
with  the  sums  applicable  out  of  such  net  proceeds  to  the  pay- 
ment of,  and  credited  on  the  bonds  and  coupons  so  presented, 
and,  at  any  such  sale,  any  bondholders  may  bid  for  and  may  pur- 
chase such  property,  and  may  make  payment  therefor  as  afore- 
said. 

Section  11.  The  company  covenants  that  (1)   in 

case  default  shall  be  made  in  the  payment  of  any  interest  on 
any  bond  or  bonds  at  any  time  outstanding  and  secured  by  this 
indenture,  and  such  default  shall  have  continued  for  a  period  of 
days,  or  (2)  in  case  default  shall  be  made  in  the 
payment  of  the  principal  of  any  such  bonds  when  the  same  shall 
become  payable,  whether  by  the  maturity  of  said  bonds,  or  by 
declaration  as  authorized  by  this  indenture,  or  by  a  sale  as  pro- 
vided in  section  4  of  this  article,  then  upon  demand  of  the  trus- 
tee, the  company  will  pay  to  the  trustee,  for  the  ben- 
efit of  the  holders  of  the  bonds  and  coupons  hereby  secured,  then 
outstanding,  the  whole  amount  due  and  payable  on  all  such  bonds 
and  coupons  then  outstanding,  for  interest  or  principal,  or  both, 
as  the  case  may  be,  with  interest  at  the  rate  of  per 
cent,  per  annum,  upon  the  overdue  principal  and  instalments 
of  interest ;  and  in  case  the                        company  shall  fail  to  pay 


368  Conveyancing  in   Pennsylvania. 

the  same  forthwith  upon  such  demand  the  trustee,  in  its  own 
name  and  as  trustee,  for  the  use  and  benefit,  equally  and  ratably, 
of  the  owners  and  holders  of  the  bonds  and  interest  coupons  se- 
cured hereby,  shall  be  entitled  to  recover  judgment  against  the 
company  for  the  whole  amount  so  due  and  unpaid, 
either  before,  during  or  after  any  proceeding  hereunder  for 
the  enforcement  of  the  lien  of  this  indenture. 

Section  12.  The  company  covenants  that  it  will  not 

at  any  time  insist  upon  or  plead,  or  in  any  manner  whatever 
claim  or  take  the  benefit  or  advantage  of  any  stay  or  extension  or 
exemption  law  now  or  at  any  time  hereafter  in  force,  nor  will 
it  claim,  take  or  insist  upon  any  benefit  or  advantage  from  any 
law  now  or  hereafter  in  force  providing  for  valuation  or  ap- 
praisement, of  the  mortgaged  property  or  any  part  thereof, 
prior  to  any  sale  or  sales  thereof  to  be  made  pursuant  to  any 
provision  herein  contained,  or  to  the  decree,  judgment  or  order 
of  any  court  of  competent  jurisdiction;  nor  after  any  such  sale 
or  sales  will  it  claim  or  exercise  any  right  under  any  statute 
enacted  by  any  state  or  otherwise,  to  redeem  the  property  so 
sold  or  any  part  thereof ;  and  it  hereby  expressly  waives  all  ben- 
efits and  advantage  of  any  such  law  or  laws;  and  it  covenants 
that  it  will  not  hinder,  delay  or  impede  the  execution  of  any 
power  herein  granted  and  delegated  to  the  trustee;  but  that  it 
will  suffer  and  permit  the  execution  of  every  such  power,  as 
though  no  such  law  or  laws  had  been  enacted. 

Section  13.  No  holder  of  any  bond  or  coupon  hereby  secured 
shall  have  any  right  to  institute  any  suit,  action  or  proceeding  in 
equity,  or  at  law,  for  the  foreclosure  of  this  indenture,  or  for  the 
execution  of  any  trust  thereof,  or  for  the  appointment  of  a 
receiver,  or  for  any  other  remedy  hereunder,  or  for  the  collec- 
tion of  any  of  said  bonds  or  coupons,  unless  such  holder  pre- 
viously shall  have  given  to  the  trustee  written  notice  of  a  default ; 
and  of  the  continuance  thereof,  as  hereinbefore  provided;  nor 
unless,  also,  the  holders  of  per  cent,  in  amount  of  the 

bonds  hereby  secured,  then  outstanding,  shall  have  made  written 
request  upon  the  trustee  and  shall  have  offered  to  it  a  reasonable 
opportunity,  either  to  proceed  to  exercise  the  powers  hereinbe- 
fore granted,  or  to  institute  such  actions,  suit  or  proceeding  in 
its  own  name ;  nor  unless,  also,  they  shall  have  offered  to  the 
trustee  adequate  security  and  indemnity  against  the  costs,  ex- 
penses  and  liabilities  to   be  incurred  therein   or  thereby;   and 


Forms.  3^9 

such  notification,  request  and  offer  of  indemnity  are  hereby  de- 
clared, in  every  such  case,  at  the  option  of  the  trustee,  to  be 
conditions  precedent  to  the  execution  of  the  powers  and  trusts 
of  this  indenture,  for  the  benefit  of  the  bondholders,  and  to  any 
action  or  cause  of  action  for  foreclosure  or  for  the  appointment 
of  a  receiver,  or  for  any  other  remedy  hereunder ;  it  being  under- 
stood and  intended  that  no  one  or  more  holders  of  bonds  and 
coupons  shall  have  any  right  in  any  manner  whatever  by  his  or 
their  action,  to  affect,  disturb  or  prejudice  the  lien  of  this  inden- 
ture, or  to  enforce  any  right  hereunder,  except  in  the  manner 
herein  provided,  and  that  all  proceedings  at  law  or  in  equity  shall 
be  instituted,  had  and  maintained  in  the  manner  herein  provided, 
and  for  the  equal  benefit  of  all  holders  of  such  outstanding  bonds 
and  coupons. 

Section  14.  Except  as  herein  expressly  provided  to  the  con- 
trary, no  remedy  herein  conferred  upon  or  reserved  to  the  trus- 
tee, or  to  the  holders  of  bonds  hereby  secured,  is  intended  to  be 
exclusive  of  any  other  remedy  or  remedies;  but  each  and  every 
such  remedy  shall  be  cumulative,  and  shall  in  addition  to  every 
other  remedy  given  hereunder,  or  now,  or  hereafter  existing  law 
or  in  equity  or  by  statute ;  but  no  action  at  law  shall  be  institu- 
ted against  the  company  by  any  bondholder  to  en- 
force the  contractual  liability  of  the  company  by  rea- 
son of  its  covenants  and  promises  contained  in  said  bonds  until 
the  property  hereby  mortgaged  shall  have  been  exhausted  by 
pursuit  of  the  remedies  herein  provided. 

Section  15.  No  delay  or  omission  of  the  trustee,  or  of  any 
holders  of  bonds  hereby  secured,  to  exercise  any  right  or  power 
accruing  upon  any  default,  continuing  as  aforesaid,  shall  im- 
pair any  such  right  or  power,  or  be  construed  to  be  a  waiver  of 
any  such  default,  or  acquiescence  therein;  and  every  power 
and  remedy  given  by  this  article  to  the  trustee  or  to  the  bond- 
holders, may  be  exercised  from  time  to  time,  and  as  often  as 
may  be  deemed  expedient  by  the  trustee  or  by  the  bondholders. 

ARTICLE  VI. 

Section  15.  No  delay  or  omission  of  the  trustee,  or  of  any 
amount  of  all  the  bonds  hereby  secured  for  the  time  being  out- 
standing, by  their  votes  at  a  meeting  of  the  bondholders  held  as 
provided  in  section  2  of  this  article  or  by  an  instrument  or  in- 


370  Conveyancing  in  Pennsylvania. 

struments  in  writing,  signed  by  such  bondholders,  at  or  following 
such  meeting,  shall  have  power  (i)  to  assent  to  and  authorize 
any  modification  or  compromise  of  the  rights  of  the  bondholders 
and  of  the  trustee  against  the  company,  or  against 

any  property  covered  by  this  indenture,  as  may  be  recommended 
by  the  trustee,  whether  such  rights  shall  arise  under  these  pres- 
ents or  otherwise;  and  (2)  to  assent  to  and  authorize  any  modi- 
fication of  the  provisions  of  this  indenture  that  shall  be  proposed 
by  the  company  and  recommended  by  the  trustee. 

Section  2.  Meetings  of  the  bondholders  may  be  convened  in 
Pennsylvania,  by  the  trustee,  and  shall  be  convened 
by  the  trustee  on  the  request  in  writing  of  the  holders  of 
in  amount  of  the  outstanding  bonds,  and  in  the  event  of  the  re- 
fusal or  neglect  of  the  trustee  for  days  after  such 
request  shall  have  been  delivered  to  the  trustee  to  convene  such 
meeting,  or  meetings,  of  the  bondholders,  the  holders  of 
in   amount   of   the   then   outstanding   bonds   may   convene   the 
same,  and  notice  of  the  time,  place  and  purpose  of  every  such 
meeting  or  meetings,   shall  be  given  by  the  party  or  parties, 
calling  the  same  by  advertisement                  a  week  for 
successive  weeks  in  at  least                 daily  newspapers  of  general 
circulation,  published  in  the                ,  State  of  Pennsylvania,  and 
also,  in  like  manner,  in                         daily  newspapers  of  general 
circulation  published  in  the                 ,  Pennsylvania,  the  last  of 
which  advertisements  shall  not  be  less  than  days  be- 
fore the  date  fixed  for  such  meeting.    A  copy  of  such  notice  shall 
also  be  mailed,  in  a  sealed  envelope,  duly  stamped  and  addressed, 
to   each   registered   holder  of   a  bond,   or  bonds.      Subsequent 
meetings  may  be  called  in  such  manner  as  may  be  fixed  by  reg- 
ulations prescribed  or  established  by  the  bondholders   at  such 
meetings ;  and  such  regulations  or  by-laws  in  respect  of  such 
meetings  may,  from  time  to  time,  be  established,  altered  or  re- 
pealed by                       in  amount  of  the  bonds  represented  at  such 
meeting  as  to  them  shall  deem  expedient ;  and  until  the  bond- 
holders shall  make  such  regulations  and  by-laws,  such  powers 
may  be  exercised  by  the  trustee.     At  all  such  meetings  bond- 
holders may  be  represented  and  vote  in  person,  or  by  proxy. 
Any  act  or  resolution  of  the  bondholders  affecting  the  duties  of 
the  trustee  shall  be  authenticated  by  the  signatures  of  all  the 
bondholders  in  person,  or  by  proxy,  assenting  thereto,  as  well  as 
by  a  minute  of  the  proceedings  of  the  meeting.     The  presence 


Forms.  371 

in  person,  or  by  proxy,  of  the  holders  of  not  less  than  in 

interest  of  the  outstanding  bonds  hereby  secured  shall  be  re- 
quired to  constitute  a  quorum  at  any  such  meeting  of  the  bond- 
holders. 

Any  action  herein  authorized  taken  with  the  assent  or  author- 
ity, given  as  aforesaid,  of  the  holders  of  in  interest 
of  the  bonds  hereby  secured  for  the  time  being  outstanding  and 
duly  evidenced  as  herein  required,  shall  be  binding  upon  the 
holders  of  all  the  bonds  hereby  secured,  and  upon  the  trustee  as 
fully  as  though  such  action  were  specifically  and  expressly  au- 
thorized by  the  terms  of  this  indenture. 

ARTICLE  VII. 

Section  i.  Any  request,  direction,  resolution,  or  other  instru- 
ment required  by  this  indenture  to  be  signed  and  executed  by 
bondholders,  may  be  in  any  number  of  concurrent  writings  of 
similar  tenor,  and  may  be  signed  or  executed  by  such  bondholders 
in  person,  or  by  agent  appointed  in  writing.  Proof  of  the  execu- 
tion of  any  such  request,  direction,  resolution  or  other  instru- 
ment, or  of  the  writing  appointing  any  such  agent,  and  of  the 
ownership  of  bonds,  which  are  not  registered  as  hereinbefore 
provided,  shall  be  sufficient  for  any  purpose  of  this  indenture, 
and  shall  be  conclusive  with  regard  to  any  action  taken  by  the 
trustee  under  such  request  if  made  in  the  following  manner : 

The  fact  and  date  of  the  execution  by  any  person  of  any  such 
writing  may  be  proved  by  the  certificate  of  any  officer  in  any 
jurisdiction,  who,  by  the  laws  thereof,  has  power  to  take  ac- 
knowledgments of  deeds  within  said  jurisdiction,  that  the  person 
signing  such  writing,  acknowledged  before  him  the  execution 
thereof ;  or,  by  the  affidavit  of  a  subscribing  witness  to  such 
execution. 

The  fact  of  the  holding  of  bonds  issued  hereunder  by  any  bond- 
holders, and  the  amount  and  the  serial  number  thereof,  and  the 
date  of  his  holding  of  any  such  bonds,  may  be  proved  by  a  cer- 
tificate executed  by  any  trust  company,  bank,  bankers  or  other 
depositories  (wherever  situate)  if  such  certificate  shall  be  deemed 
by  the  trustee  to  be  satisfactory,  showing  that  at  the  date  therein 
mentioned  such  person  had  on  deposit  with  such  trust  company, 
bank,  bankers  or  other  depository,  the  bonds  described  in  such 
certificate. 


372  Conveyancing  in   Pennsylvania. 

Section  2.  The  company  and  the  trustee  may  deem 

and  treat  the  bearer  of  any  bond  hereby  secured,  which  shall  not 
at  the  time  be  registered  as  hereinbefore  authorized,  and  the 
bearer  of  any  coupon  for  interest  on  any  such  bond,  whether 
such  bond  shall  be  registered  or  not,  as  the  absolute  owner  of 
such  bond  or  coupon  as  the  case  may  be,  for  the  purpose  of  re- 
ceiving payment  thereof,  and  for  all  other  purposes,  unless  the 
trustee  shall  have  been  notified  in  writing  to  the  contrary. 

The  company  and  the  trustee  may  deem  and  treat 

the  person  in  whose  name  a  bond  shall  be  registered  upon  the 
books  of  the  company  as  hereinbefore  provided,  as 

the  absolute  owner  of  such  bond  for  the  purpose  of  receiving 
payment  of,  or  on  account  of,  the  principal  and  interest  of  such 
bond,  and  for  all  other  purposes,  except  to  receive  payment  of 
interest  represented  by  outstanding  coupons;  and  all  such  pay- 
ments so  made  to  any  such  registered  holder,  or  to  his  legal  rep- 
resentatives or  assigns,  shall  be  valid  and  effectual  to  satisfy  and 
discharge  the  liability  upon  such  bond  to  the  extent  of  the  sum  or 
sums  so  paid. 

ARTICLE  VIII. 

No  recourse  under  or  upon  any  obligation,  covenant  or  agree- 
ment contained  in  this  indenture,  or  in  any  bond  or  coupon 
hereby  secured,  or  because  of  the  creation  of  any  indebtedness 
hereby  secured,  shall  be  had  against  any  incorporator,  stock- 
holder, officer  or  director  of  the  company,  or  against 
any  successor  corporation,  either  directly  or  through  the 
company,  by  the  enforcement  of  any  assessment,  or  by  any  legal 
or  equitable  proceedings  by  virtue  of  any  statute  or  otherwise, 
it  being  expressly  agreed  and  understood  that  this  mortgage  and 
the  obligations  hereby  secured,  are  solely  corporate  obligations, 
and  that  no  personal  liability  whatever  shall  attach  to,  or  be  in- 
curred by,  the  incorporators,  stockholders,  officers  or  directors 
of  the  company,  or  by  any  successor  corporation,  or 
any  of  them,  because  of  the  incurring  of  the  indebtedness  hereby 
authorized,  or  under  or  by  reason  of  any  of  the  obligations, 
covenants  or  agreements  contained  in  this  indenture,  or  in  any 
of  the  bonds  or  coupons  hereby  secured,  or  which  may  be  implied 
therefrom ;  and  it  is  agreed  that  this  indenture  and  the  bonds  and 
coupons  hereby  secured  are  executed  and  accepted  on  condition 


Forms.  373 

that  any  and  all  personal  liability,  and  all  rights  of  action,  and 
claims  of  whatsoever  nature,  against  every  such  incorporator, 
stockholder,  officer  or  director,  whether  at  common  law  or  equity, 
or  created  by  statute  or  constitution,  or  otherwise  arising,  are 
hereby  expressly  waived  and  forever  released. 

ARTICLE  ix. 

If  when  the  bonds  hereby  secured  shall  have  become  due  and 
payable,  the  company  shall  well  and  truly  pay,  or 

cause  to  be  paid,  the  whole  amount  of  the  principal  moneys  and 
interest  due  upon  all  of  the  bonds  and  coupons  for  interest  there- 
on hereby  secured  and  then  outstanding,  or  shall  provide  for  such 
payment  by  depositing  with  the  trustee  hereunder  for  the  pay- 
ment of  such  bonds  and  coupons,  the  entire  amount  then  due 
thereon  for  principal  and  interest,  and  also  shall  pay,  or  cause 
to  be  paid,  all  other  sums  payable  hereunder  by  the 
company,  and  shall  well  and  truly  keep  and  perform  all  the 
things  herein  required  to  be  kept  and  performed  by  its  according 
to  the  true  intent  and  meaning  of  this  indenture;  then  and  in 
that  case  all  property,  rights  and  interests  hereby  conveyed  or 
pledged  shall  revert  to  the  company,  and  the  estate, 

rights,  title  and  interest  of  the  trustee  shall  thereupon  cease, 
determine  and  become  void ;  and  the  trustee  in  such  case,  on  de- 
mand of  the  company,  and  at  the  cost  and  expense  of 
the  company,  shall  execute  proper  instruments  ac- 
knowledging satisfaction  and  for  the  discharge  of  record  of  this 
indenture,  and  shall  transfer  and  deliver  to  the  com- 
pany all  shares  of  stock,  or  other  securities,  which  may  then  be 
pledged  hereunder. 

ARTICLE  x. 

Section  I.  Any  trustee  hereafter  appointed,  may  be  removed 
at  any  time  by  an  instrument,  or  concurrent  instruments,  in 
writing  signed  by  the  holders  of  not  less  than  in 

amount  of  the  bonds  hereby  secured  and  then  outstanding.  In 
case  at  any  time  the  trustee,  or  any  trustee  hereafter  appointed, 
shall  resign  or  shall  be  removed  or  otherwise  shall  become  in- 
capable of  acting,  a  successor  may  be  appointed  by  the  holders  of 
a  majority  in  amount  of  the  bonds  hereby  secured  and  then  out- 
standing, by  an  instrument  or  concurrent  instruments  signed  by 


374  Conveyancing   in    Pennsylvania. 

such  bondholders,  or  their  attorneys  in  fact,  duly  authorized,  but 
in  case  at  any  time  there  shall  be  a  vacancy  in  the  office  of  trustee 
hereunder,  the  company,  by  an  instrument  executed 

by  order  of  its  board  of  directors,  may  appoint  a  trustee  to  fill 
such  vacancy  until  a  new  trustee  shall  be  appointed  by  the  bond- 
holders, as  herein  authorized.  The  company  shall 
publish  notice  of  any  such  appointment  by  it  made  once  in  each 
week  for  successive  weeks  in  a  daily  newspaper  of 
general  circulation  published  in  the  ,  Pennsylvania, 
and  in  like  manner,  in  daily  newspaper  of  general 
circulation,  published  in  the                        ,  Pennsylvania. 

At  any  time  within  months  from  the  date  of  the 

last  publication  of  such  notice,  the  holder  or  holders  of  a  ma- 
jority in  amount  of  the  bonds  then  outstanding,  if  for  any  reason 
dissatisfied  with  the  trustee  so  appointed  by  the  com- 

pany, may,  in  the  manner  hereinbefore  provided,  appoint  a  new 
trustee.  A  copy  of  the  instrument,  or  instruments,  constituting 
such  appointment  shall  be  deposited  with  the  com- 

pany, and  the  original  thereof  delivered  to  the  new  trustee; 
whereupon  such  new  trustee  shall  deliver  a  certified  copy  of 
such  appointment  so  made  by  the  bondholders  to  the  trustee  ap- 
pointed by  the  company,  and  thereupon  the  trustee 
named  by  the  bondholders  shall  be  vested  with  all  the  powers, 
authority  and  estates  granted  and  conveyed  to  the  trustee  herein 
named  without  any  other  or  further  assurance  or  conveyance. 
Until  the  appointment  of  a  successor  in  the  manner  herein  pro- 
vided, the  trustee  appointed  by  the  company  shall  be 
vested  with  all  the  powers  herein  conferred  upon  the  trustee. 
Every  trustee  appointed  by  the  bondholders,  or  by  the 
company,  shall  be  an  incorporated  trust  company  in  good  stand- 
ing, having  its  principal  office  in  the  ,  Pennsylvania. 

Section  2.  Any  new  trustee  appointed  hereunder  shall  execute, 
acknowledge  and  deliver  to  the  trustee  last  in  office,  and  also  to 
the  company,  an  instrument  accepting  such  appoint- 

ment hereunder,  and  thereupon  such  new  trustee,  without  any 
further  act,  deed  or  conveyance,  shall  become  vested  with  all 
the  estates,  properties,  rights,  powers,  trusts,  duties  and  obliga- 
tions of  its  predecessor  in  trust  hereunder,  with  like  effect  as 
if  originally  named  as  trustee  herein;  and  the  trustee  ceasing  to 
act,  shall,  nevertheless,  on  the  written  request  of  the 
company,  or  of  the  new  trustee,  execute,  acknowledge  and  de- 


Forms.  375 

liver  to  such  new  trustee  such  instruments  as  may  be  reasonably 
required  to  convey  upon  the  trusts  herein  expressed,  all  the  es- 
tates, properties,  rights  and  powers  of  the  trustee  so  ceasing  to  act 
and  shall  duly  assign,  transfer  and  deliver  all  property  and 
moneys  held  by  such  trustee  to  the  new  trustee.  Should  any 
deed,  conveyance  or  instrument  in  writing  from  the 
company  be  required  by  any  new  trustee  for  more  fully  and  cer- 
tainly vesting  in  and  confirming  to  such  new  trustee  such  estate, 
rights,  powers  and  duties,  any  and  all  such  deeds,  conveyances 
and  instruments  in  writing  shall,  on  request,  be  made,  executed, 
acknowledged  and  delivered  by  it. 

ARTICLE  xi. 

The  trustee  for  itself  and  its  successors,  hereby  accepts  the 
trusts  and  assumes  the  duties  herein  created  and  imposed  upon 
it,  but  only  upon  the  following  terms  and  conditions,  to  wit : 

(a)  The  trustee  shall  be  protected  in  acting  upon  any  notice, 
request,  consent,  certificate,  bond  or  other  paper  or  document 
believed  by  it  to  be  genuine,  and  to  have  been  signed  by  the 
proper  party. 

(b)  The  trustee  shall  not  be  obliged  to  take  notice  of  any  de- 
fault on  the  part  of  the  company  until  it  has  re- 
ceived written  notice  thereof,  signed  by  holders  of  at  least 

per  cent,  in  amount  of  the  bonds  outstanding  hereunder. 

(c)  The  trustee  shall  not  be  personally  liable  for  any  debts 
contracted  by  it,  nor  for  damages  to  persons  or  property,  nor  for 
injuries  or  salary  or  nonfulfillment  of  contracts,  during  the 
period  wherein  the  trustee  shall  manage  the  trust  property  or 
premises,  whether  upon  entry  or  otherwise.  The  trustee  shall 
not  be  under  any  responsibility  or  duty  with  respect  to  the  dispo- 
sition of  the  bonds  hereby  secured  or  their  proceeds. 

(d)  The  trustee  may  select  and  employ,  in  and  about  the  ex- 
ecution of  this  trust  suitable  agents  and  attorneys,  whose  reason- 
able compensation  shall  be  paid  to  the  trustee  by  the 
company,  or  in  default  of  such  payment,  shall  be  a  charge  upon 
the  hereby  pledged  premises  and  property  and  the  proceeds 
thereof,  paramount  to  said  bonds.  The  trustee  shall  not  be  an- 
swerable for  the  default  or  misconduct  of  any  agent  or  attorney 
appointed  by  it  in  pursuance  hereof,  if  such  agent  or  attorney 
shall  have  been  selected  with  reasonable  care,  or  for  anything 


376  Conveyancing  in   Pennsylvania. 

whatever,  in  connection  with  this  trust,  except  wilful  misconduct 
or  gross  negligence. 

(e)  The  trustee  shall  have  a  first  lien  upon  the  pledged  prop- 
erty and  fund  for  its  reasonable  expenses,  counsel  fees  and  com- 
pensation and  any  liability  incurred  by  reason  of  the  trust  here- 
by created  in  the  exercises  and  performance  of  its  powers  and 
duties  hereunder. 

(f)  The  trustee  shall  be  under  no  obligation  or  duty  to  per- 
form any  act  hereunder,  or  defend  any  suit  in  respect  hereof,  un- 
less reasonably  indemnified.  Excepting  as  herein  expressly 
otherwise  provided,  the  trustee  shall  not  be  bound  to  recognize 
any  person  as  a  bondholder,  unless  or  until  his  bonds  are  sub- 
mitted to  the  trustee  for  inspection,  if  required,  and  his  title  satis- 
factorily established,  if  disputed. 

(g)  It  shall  be  no  part  of  the  duty  of  the  trustee  to  file  or 
record  this  indenture  as  a  mortgage,  or  conveyance  of  real  es- 
tate, or  as  a  chattel  mortgage  or  conveyance  of  personal  prop- 
erty, or  to  renew  such  mortgage,  real  or  personal,  or  to  procure 
any  further,  other  or  additional  instrument  or  further  assurance, 
or  to  do  any  other  act  which  may  be  suitable  and  proper  to  be 
done  to  the  continuance  of  the  lien  hereof,  or  for  giving  notice 
of  the  existence  of  such  lien,  or  for  extending  and  supplementing 
the  same ;  nor  shall  it  be  any  part  of  its  duty  to  effect  insurance 
against  fire  or  other  damage  on  any  portion  of  the  mortgaged 
property  or  to  renew  any  policies  of  insurance,  or  to  keep  itself 
informed  as  to  the  payment  of  any  taxes  or  assessments,  or  to 
require  such  payment  to  be  made ;  but  the  trustee  may,  in  its 
discretion,  do  any  or  all  of  these  things. 

(h)  The  trustee,  or  any  successor  or  successors  hereafter  ap- 
pointed, may  resign  and  be  discharged  of  the  trusts  hereby 
created  by  written  notice  thereof  to  the  company, 

and  by  publication  at  least  in  each  week  for 

successive  weeks  in  a  daily  newspaper  published  in  the  , 

State  of  Pennsylvania,  and  by  due  execution  of  the  conveyance 
herein  required. 

(i)  The  recital  of  facts  herein  and  in  said  bonds  contained 
shall  be  taken  as  statements  by  the  company,  and 

shall  not  be  construed  as  made  by  the  trustee. 


Forms.  377 


ARTICLE  XII. 


Section  i.  All  the  covenants,  stipulations,  promises,  undertak- 
ings and  agreements  herein  contained  by  or  on  behalf  of  the 
company  shall  bind  its  successors  and  assigns,  wheth- 
er so  expressed  or  not.  For  every  purpose  of  this  indenture, 
including  the  execution,  issue  and  use  of  any  and  all  bonds  hereby 
secured,  the  terms  "  company"  includes,  and  means 

not  only  the  party  of  the  first  part  hereto,  but  also  its  successors 
and  assigns. 

Section  2.  The  word  "trustee"  means  the  trustee  for  the  time 
being,  whether  original  or  successor ;  the  words  "trustee,"  "bond," 
"bondholder,"  shall  include  the  plural  as  well  as  the  singular 
number,  unless  otherwise  expressly  indicated.  The  word  "cou- 
pons" refers  to  the  interest  coupons  belonging  to  the  bonds  se- 
cured hereby.  The  word  "person"  used  with  reference  to  a 
bondholder  shall  include  persons,  associations,  partnerships  or 
corporations  owning  any  of  said  bonds. 

The  board  of  directors  of  company  has,  by  reso- 

lution, duly  appointed  its  attorney  to  acknowledge  this 

indenture,  and  the  said  company  doth  hereby  consti- 

tute and  appoint  to  be  its  attorney,  for  it  and  in  its 

name  and  as  and  for  its  corporate  act  and  deed,  to  acknowledge 
this  indenture  before  any  person  having  authority  by  the  laws  of 
the  Commonwealth  of  Pennsylvania  to  take  such  acknowledg- 
ment, to  the  intent  that  the  same  may  be  duly  recorded. 

The  board  of  directors  of  the  trust  company  has, 

by  resolution,  duly  appointed  its  attorney  to  acknowl- 

edge this  indenture,  and  the  said  trust  company  doth 

hereby  constitute  and  appoint  to  be  its  attorney,  for 

it  and  in  its  name  and  as  and  for  its  corporate  act  and  deed,  to 
acknowledge  this  indenture  before  any  person  having  authority 
by  the  laws  of  the  Commonwealth  of  Pennsylvania  to  take  such 
acknowledgment,  to  the  intent  that  the  same  may  be  duly  re- 
corded. 

In  witness  whereof,  the  said  parties  hereto  have  caused  their 
corporate  seals  to  be  affixed  to  an  original  and  duplicate  hereof, 
attested  by  their  respective  secretaries,  and  these  presents  to  be 
signed  by  their  respective  presidents  the  day  of  ,. 

A.  D.  19     . 

Company. 


378 

Conveyancing   in   Pennsylvania. 

Attest 

By 

President. 

Attest 

Secretary. 

By 

Secretary. 

Company. 
Trustee. 

President. 

State  oe  Pennsylvania, 
County  oe 

>  ss: 

I  hereby  certify 

that  on 

this                  d 

ay  of 

,  A.  D. 

19     ,  before  me,  the  subscriber,  a  notary  public  in  and  for  'jaid 
county  and  state,  personally  appeared  ,  the  attorney 

named  in  the  foregoing  indenture,  and  by  virtue  and  in  pursu- 
ance of  the  authority  therein  conferred  upon  him,  acknowledged 
the  said  indenture  to  be  the  act  and  deed  of  the  said 
company. 

Witness  my  hand  and  notarial  seal  the  day  and  year  aforesaid. 

Notary  Public. 


State  oe  Pennsylvania 
County  oe 


'    \ss: 


I  hereby  certify  that  on  this  day  of  ,  A.  D.  19     , 

before  me,  the  subscriber,  a  notary  public  in  and  for  said  county 
and  state,  personally  appeared  ,  the  attorney  named 

in  the  foregoing  indenture,  and  by  virtue  and  in  pursuance  of  the 
authority  therein  conferred  upon  him,  acknowledged  the  said  in- 
denture to  be  the  act  and  deed  of  the  said  trust 
company. 

Witness  my  hand  and  notarial  seal  the  day  and  year  aforesaid. 


Commonwealth  of  Pennsylvania 
County  oe 


'   \ss: 


Notary  Public. 


Recorded  on  this  day  of  ,  A.  D.  19     ,  in 

the  recorder's  office  of  said  county  in  Mortgage  Book,  Vol.         , 
page 


Forms.  379 

Given  under  my  hand  and  the  seal  of  the  said  office  the  day 
and  year  aforesaid. 

Recorder. 

260.  Second  Mortgage  Clause. 

See  form,  paragraph  92,  page  115. 

261.  Installment  Mortgage  (Second  Mortgage.)* 

This  Indenture,  Made  the  Twentieth  day  of  August  in  the 
year  of  our  Lord  one  thousand  nine  hundred  and  ten  (ipio) 
Between  /.  N.,  of  the  City  of  Philadelphia  and  M.  his  wife 
(hereinafter  called  the  Mortgagors),  of  the  one  part,  and  G.  C. 
T.  of  said  City,  Merchant,  (hereinafter  called  the  Mortgagee  ), 
of  the  other  part. 

Whereas,  The  said  Mortgagors,  in  and  by  their  Obligation 
or  Writing  obligatory  under  their  hands  and  seals  duly  executed, 
bearing  even  date  herewith,  stand  bound  unto  the  said  Mortga- 
gee in  the  sum  of  One  thousand  Two  hundred  Dollars  lawful 
money  of  the  United  States  of  America,  conditioned  to  keep  and 
maintain  at  all  times,  until  the  full  discharge  of  the  said  Obliga- 
tion, a  Hre  policy  or  policies  of  insurance  in  good  and  approved 
company  or  companies,  duly  assigned  as  collateral  security  to  the 
Mortgagee  or  his  Executors,  Administrators  or  Assigns,  to  an 
amount  not  less  than  Six  Hundred  Dollars,  upon  the  buildings  on 
the  premises  hereinafter  described,  and  conditioned  for  the  pay- 
ment of  the  just  sum  of  Six  Hundred  Dollars  lawful  money  as 
aforesaid,  [within  six  years  from  the  date  thereof  in  installments 
of  not  less  than  One  Hundred  Dollars  per  year]  together  with 
interest  payable  semi-annually  at  the  rate  of  six  per  cent,  per  an- 
num without  any  fraud  or  further  delay ;  and  for  the  production 
to  the  said  Mortgagee  or  his  Executors,  Administrators  or 
Assigns,  on  or  before  the  First  day  of  December  of  each  and 
every  year,  of  receipts  for  all  taxes  and  water  rates  of  the  cur- 
rent year  assessed  upon  the  mortgaged  premises.  Provided, 
however,  and  it  is  thereby  expressly  agreed,  that  if  at  any  time 
default  shall  be  made  in  the  payment  of  interest  as  aforesaid,  or 

*This  form  is  a  second  mortgage  providing  for  the  payment  of  the  prin- 
cipal in  instalments.  If  a  straight  second  mortgage  is  desired,  leave  out 
the  clauses  in  brackets  in  both  mortgage  and  bond  which  read  "Within 
six  years  from  the  date  thereof  in  instalments  of  not  less  than  one  hun- 
dred dollars  per  year,"  and  substitute  the  words  "At  the  expiration  of  five 
years  thereof."    Also,  omit  the  words,  "or  any  instalment  thereof." 


380  Conveyancing  in   Pennsylvania. 

of  any  installment  for  the  space  of  thirty  days  after  any  payment 
thereof  shall  fall  due,  or  in  the  prompt  and  punctual  maintenance 
of  said  fire  insurance  so  assigned  as  aforesaid,  or  in  such  pro- 
duction to  the  Mortgagee  or  his  Executors,  Administrators  or 
Assigns,  on  or  before  the  first  day  of  December  of  each  and  every 
year,  of  such  receipts  for  such  taxes  and  water  rates  of  the  cur- 
rent year  upon  the  premises  mortgaged,  then  and  in  such  case  the 
whole  principal  debt  aforesaid,  shall,  at  the  option  of  the  said 
Mortgagee  or  his  Executors,  Administrators  or  Assigns,  be- 
come due  and  payable  immediately;  and  payment  of  said  princi- 
pal debt,  and  all  interest  thereon,  may  be  enforced  and  recovered 
at  once,  any  thing  therein  contained  to  the  contrary  notwithstand- 
ing. And  Provided  further,  however,  and  it  is  thereby  ex- 
pressly agreed,  that  if  at  any  time  thereafter,  by  reason  of  any 
default  in  the  maintenance  of  said  insurance,  or  in  payment, 
either  of  said  principal  sum  at  maturity,  or  of  said  interest,  or  in 
production  of  said  receipts  for  taxes  and  water  rates,  within  the 
time  specified,  a  writ  of  Fieri  Facias  is  properly  issued  upon  the 
judgment  obtained  upon  said  Obligation,  or  by  virtue  of  said 
Warrant  of  Attorney,  or  a  writ  of  Scire  Facias  is  properly  issued 
upon  this  Indenture  of  Mortgage,  an  attorney's  commission  for 
collection,  viz :  five  per  cent,  shall  be  payable,  and  shall  be  re- 
covered in  addition  to  all  principal  and  interest  besides  costs  of 
suit,  as  in  and  by  the  said  recited  Obligation  and  the  Condition 
thereof,  relation  being  thereunto  had  may  more  fully  and  at  large 
appear. 

Now  this  Indenture  witnesseth,  That  the  said  Mortga- 
gor ,  as  well  for  and  in  consideration  of  the  aforesaid  debt  or 
principal  sum  of  Six  Hundred  Dollars  and  for  the  better  securing 
the  payment  of  the  same,  with  interest  as  aforesaid,  unto  the,  said 
Mortgagee  his  Executors,  Administrators  and  Assigns,  in  dis- 
charge of  the  said  recited  Obligation,  as  for  and  in  consideration 
of  the  further  sum  of  One  Dollar  unto  him  in  hand  well  and  truly 
paid  by  the  said  Mortgagee  at  and  before  the  sealing  and  de- 
livery hereof,  the  receipt  whereof  is  hereby  acknowledged,  hath 
granted,  bargained,  sold,  aliened,  enfeoffed,  released  and  con- 
firmed, and  by  these  presents  doth  grant,  bargain,  sell,  alien,  en- 
feoff, release  and  confirm  unto  the  said  Mortgagee  his  Heirs 
and  Assigns,  All  That  Certain  lot  or  piece  of  ground  with  the 
two  story  brick  messuage  or  tenement  thereon  erected  (No.  5649) 
situate  on  the  North  Side  of  W .  Avenue  at  the  distance  of 


Forms.  381 

Three  hundred  and  ninety-two  feet  Westward  from  the  West 
side  of  Fifty-sixth  Street  in  the  Forty-sixth  Ward  of  the  City  of 
Philadelphia  aforesaid.  Containing  in  front  or  breadth  on  the 
said  W .  Avenue  fifteen  feet  and  extending  of  that  width  in  length 
or  depth  N orthward  between  parallel  lines  at  right  angles  to  said 
W.  Avenue,  Sixty  feet  to  a  certain  three  feet  wide  alley  which  ex- 
tends Eastward  and  Westward  and  communicates  at  each  end 
thereof  with  a  cetrain  other  three  feet  wide  alley  leading  South- 
ward and  Northward  from  W.  Avenue  to  P.  Street. 

Being  the  same  premises  which  G.  C.  T.  and  wife  by  Indenture 
bearing  even  date  herewith  and  intended  to  be  forthwith  recorded, 
granted  and  conveyed  unto  the  said  M.  N.  in  fee. 

Under  and  Subject  to  the  payment  of  a  certain  mortgage  debt 
of  One  thousand  seven  hundred  Dollars  made  by  W.  A.  W.  D.  to 
E.  P.  D.  dated  Jidy  18th,  1006  and  Recorded  in  Mortgage  Book 
W.  S.  V.  No.  goo  page  305  since  reduced  to  the  sum  of  Fifteen 
hundred  Dollars. 

Together  with  the  free  and  common  use,  right,  liberty  and 
privilege  of  the  aforesaid  alleys  as  and  for  passage  ways  and 
water  courses  at  all  times  hereafter  forever. 

And. 

Together  with  all  and  singular  the  Buildings  and  improve- 
ments, Ways,  Waters,  Water-Courses,  Rights,  Liberties,  Privi- 
leges, Improvements,  Hereditaments  and  Appurtenances  what- 
soever thereunto  belonging,  or  in  any  wise  appertaining,  and  the 
Reversions  and  Remainders,  Rents,  Issues  and  Profits  thereof, 

To  have  and  to  hoed  the  said  lot  or  piece  of  ground  above 
described  with  the  two  story  brick  messuage  or  tenement  thereon 
erected,  Hereditaments  and  Premises  hereby  granted,  or  men- 
tioned and  intended  so  to  be,  with  the  Appurtenances,  unto  the 
said  Mortgagee  his  Heirs  and  Assigns,  to  and  for  the  only  proper 
use  and  behoof  of  the  said  Mortgagee  his  Heirs  and  Assigns 
forever. 

Under  and  Subject  nevertheless  to  the  above  mentioned  Mort- 
gage debt  of  One  Thousand  Five  Hundred  Dollars  with  interest 
thereon. 

Provided  always,  nevertheless,  that  if  the  said  Mortgagors, 
their  Heirs,  Executors,  Administrators  or  Assigns,  do  and  shall 
well  and  truly  pay,  or  cause  to  be  paid,  unto  the  said  Mortgagee 
his  Executors,  Administrators  or  Assigns,  the  aforesaid  debt  or 
principal  sum  of  Six  Hundred  Dollars  on  the  day  and 


382  Conveyancing  in   Pennsylvania. 

time  hereinbefore  mentioned  and  appointed  for  payment  of  the 
same,  together  with  interest  as  aforesaid,  and  shall  produce  to  the 
said  Mortgagee  or  his  Executors,  Administrators  or  Assigns, 
on  or  before  the  First  day  of  December  of  each  and  every  year, 
receipts  for  all  taxes  and  water  rates  of  the  current  year  assessed 
upon  the  mortgaged  premises,  and  shall  keep  and  maintain  said 
fire  insurance  so  assigned  as  aforesaid,  without  any  fraud  or 
further  delay,  and  without  any  deduction,  defalcation,  or  abate- 
ment to  be  made  of  any  thing,  herein  mentioned  to  be  paid  or 
done,  that  then,  and  from  thenceforth,  as  well  this  present 
Indenture,  and  the  estate  hereby  granted,  as  the  said  recited 
Obligation  shall  cease,  determine  and  become  void,  any  thing 
hereinbefore  contained  to  the  contrary  thereof,  an  any  wise  not- 
withstanding. And  Provided  also,  that  it  shall  and  may  be  law- 
ful for  the  said  Mortgagee  his  Executors,  Administrators  or  As- 
signs, when  and  as  soon  as  the  principal  debt  or  sum  hereby  se- 
cured [or  any  installment  thereof]  shall  become  due  and  payable 
as  aforesaid,  or  in  case  default  shall  be  made  for  the  space  of 
thirty  days  in  the  payment  of  interest  on  the  said  principal  sum, 
[or  any  installment  thereof]  after  any  payment  thereof  shall  fall 
due,  or  in  the  prompt  and  punctual  maintenance  of  said  fire  in- 
surance so  assigned  as  aforesaid,  or  in  case  there  shall  be  default 
in  the  production  to  the  said  Mortgagee  or  his  Executors,  Ad- 
ministrators or  Assigns,  on  or  before  the  first  day  of  December 
of  each  and  every  year,  of  such  receipts  for  such  taxes  and  water 
rates  of  the  current  year  assessed  upon  the  mortgaged  premises, 
to  sue  out  forthwith  a  writ  or  writs  of  Scire  Facias  upon  this 
Indenture  of  Mortgage,  and  to  proceed  thereon  to  judgment  and 
execution,  for  the  recovery  of  the  whole  of  said  principal  debt, 
and  all  interest  due  thereon,  together  with  an  attorney's  com- 
mission for  collection,  viz:  five  per  cent.,  besides  costs  of  suit, 
without  further  stay,  any  law,  usage  or  custom  to  the  contrary 
notwithstanding. 

In  Witness  WherEoE,  the  said  parties  to  these  presents  have 
hereunto  interchangeably  set  their  hands  and  seals.  Dated  the 
day  and  year  first  above  written. 

Sealed  and  Delivered    "^ 
in  the  presence  of  us:  I  J.  N.  (Seal.) 

T.  N.  W.,  M.  N.         (Seal.) 

W.  M.  N. 


Forms.  383 

On  the  Seventeenth  day  of  August,  Anno  Domini  191 0,  before 
me,  the  subscriber  a  Notary  Public  for  the  Commonwealth  of 
Pennsylvania,  residing  in  the  City  of  Philadelphia,  personally  ap- 
peared the  above-named  /.  N.  and  M.  his  Wife  and  in  due  form 
of  law  acknowledged  the  above  Indenture  op  Mortgage  to  be 
their  act  and  deed,  and  desired  the  same  might  be  recorded  as 
such. 

Witness  my  hand  and  Notarial  seal  the  day  and  year  afore- 
said. 

T.  N.  W., 
Notary  Public. 
Commission  expires,  etc. 

Bond  to  Accompany  Above  Mortgage 

Know  all  Men  by  these  Presents,  That  We,  J.  N.,  of  the 
City  of  Philadelphia  and  M.  his  Wife  (hereinafter  called  the 
Obligors),  are  held  and  firmly  bound  unto  G.  C.  T.,  of  said  City, 
Merchant  (hereinafter  called  the  Obligee  ),  in  the  sum  of  One 
thousand  Two  hundred  Dollars  lawful  money  of  the  United 
States  of  America,  to  be  paid  to  the  said  Obligee  his  certain  At- 
torney, Executors,  Administrators  or  Assigns :  to  which  payment 
well  and  truly  to  be  made,  we  do  bind  and  oblige  ourselves,  our 
Heirs,  Executors  and  Administrators,  firmly  by  these  Presents. 
Sealed  with  our  Seab  Dated  the  Seventeenth  day  of  August  in 
the  year  of  our  Lord  one  thousand  nine  hundred  and  ten  (igio). 

The  Condition  oe  this  Obligation  is  such,  That  if  the 
above-bounden  Obligors  their  Heirs,  Executors  or  Administra- 
tors, or  any  of  them,  shall  and  do  well  and  truly  keep  and  main- 
tain at  all  times,  until  the  full  discharge  of  this  Obligation,  a  fire 
policy  or  policies  of  insurance,  in  good  and  approved  company  or 
companies,  duly  assigned  as  collateral  to  the  Obligee  or  his  Ex- 
ecutors, Administrators  or  Assigns,  to  an  amount  not  less  than 
Six  hundred  Dollars,  upon  the  buildings  on  the  premises  mort- 
gaged by  the  Mortgage  securing  this  Obligation,  and  shall  and 
do  well  and  truly  pay,  or  cause  to  be  paid  unto  the  above-named 
Obligee  his  certain  Attorney,  Executors,  Administrators  or  As- 
signs, the  just  sum  of  Six  hundred  Dollars  lawful  money  as 
aforesaid,  [within  six  years  from  the  date  hereof  in  installments 
of  not  less  than  One  Hundred  Dollars  per  year]  together  with 
interest  payable  semi-annually  at  the  rate  of  six  per  cent,  per 


384  Conveyancing  in   Pennsylvania. 

annum,  without  any  fraud  or  further  delay ;  and  shall  produce  to 
the  said  Obligee  or  his  Executors,  Administrators  or  Assigns,  on 
or  before  the  -first  day  of  December  of  each  and  every  year,  re- 
ceipts for  all  taxes  and  water  rates  of  the  current  year  assessed 
upnn  the  mortgaged  premises ;  then  the  above  Obligation  to  be 
void,  or  else  to  be  and  remain  in  full  force  and  virtue:  Pro- 
vided, however,  and  it  is  hereby  expressly  agreed,  that  if  at  any 
time  default  shall  be  made  in  payment  of  interest  as  aforesaid, 
or  of  any  installment  for  the  space  of  thirty  days  after  any  pay- 
ment thereof  shall  fall  due,  or  in  the  prompt  and  punctual  mainte- 
nance of  said  fire  insurance  so  assigned  as  aforesaid,  or  in  such 
production  to  the  Obligee  or  his  Executors,  Administrators  or 
Assigns,  on  or  before  the  first  day  of  December  of  each  and  every 
year,  of  such  receipts  for  such  taxes  and  water  rates  of  the  cur- 
rent year  upon  the  premises  mortgaged,  then  and  in  such  case 
the  whole  principal  debt  aforesaid,  shall,  at  the  option  of  the 
said  Obligee  his  Executors,  Administrators  or  Assigns,  become 
due  and  payable  immediately,  and  payment  of  said  principal  debt, 
and  all  interest  thereon,  may  be  enforced  and  recovered  at  once, 
any  thing  herein  contained  to  the  contrary  notwithstanding. 
And  Provided  further,  however,  and  it  is  hereby  expressly 
agreed,  that  if  at  any  time  hereafter  by  reason  of  any  default  in 
the  maintenance  of  said  insurance,  or  in  payment,  either  of  said 
principal  sum,  at  maturity,  or  of  said  interest,  or  in  production 
of  said  receipts  for  taxes  and  water  rates,  within  the  time  speci- 
fied, a  writ  of  Fieri  Facias  is  properly  issued  upon  the  Judgment 
obtained  upon  this  Obligation,  or  by  virtue  of  the  warrant  of 
attorney  hereto  attached,  or  a  writ  of  Scire  Facias  is  properly 
issued  upon  the  accompanying  Indenture  of  Mortgage,  an  attor- 
ney's commission  for  collection,  viz :  five  per  cent.,  shall  be  pay- 
able, and  shall  be  recovered  in  addition  to  all  principal  and  in- 
terest then  due,  besides  costs  of  suit. 

Sealed  and  Delivered 
in  the  presence  of  us : 
F.  N.  W., 

W.  N.  N. 


M.  N.         (Seal.) 
J.  N.  (Seal.) 


To  Esq.,  Attorney  of  the  Court  of 

Common  Pleas,  at  Philadelphia,  in  the  County  of  Philadel- 
phia, in  the  State  of  Pennsylvania,  or  to  any  other  Attorney  of 
the  said  Court,  or  any  other  Court  there  or  elsewhere. 


Forms.  3^5 

Whereas,  /.  N.  and  M.  his  Wife  in  and  by  a  certain  Obliga- 
tion, bearing  even  date  herewith,  do       stand  bound  unto  G.  C.  T. 
in   the  sum   of   One   Thousand   Two   Hundred   Dollars   lawful 
money  of  the  United  States  of  America,  conditioned  to  keep  and 
,maintain  at  all  times,  until  the  full  discharge  of  the  said  Obliga- 
tion, a  fire  policy  or  policies  of  insurance,  in  good  and  approved 
company  or  companies,  duly  assigned  as  collateral  to  the  Obligee 
or  his  Executors,  Administrators  or  Assigns,  to  an  amount  not 
less  than  Six  Hundred  Dollars,  upon  the  buildings  on  the  premises 
mortgaged  by  the  Mortgage  securing  the  said  Obligation,  and 
conditioned  for  the  payment  of  the  just  sum  of  Six  Hundred  Dol- 
lars lawful  money  as  aforesaid,  [within  six  years  from  the  date 
thereof  in  installments  of  not  less  than  One  hundred  Dollars  per 
year]  together  with  interest  payable  semi-annually  at  the  rate  of 
six  per  cent,  per  annum,  and  for  the  production  to  the  Obligee 
or  his  Executors,  Administrators  or  Assigns,  on  or  before  the 
first  day  of  December  of  each  and  every  year,  of  receipts  for  all 
taxes  and  water  rates  of  the  current  year  assessed  upon  the 
premises  described  in  the  Mortgage  accompanying  said  Obliga- 
tion: 

Provided,  however,  and  it  is  thereby  expressly  agreed,  that  if 
at  any  time  default  shall  be  made  in  payment  of  interest  as  afore- 
said, [or  of  any  installment]  for  the  space  of  thirty  days  after 
any  payment  thereof  shall  fall  due,  or  in  the  prompt  and  punc- 
tual maintenance  of  said  fire  insurance  so  assigned  as  aforesaid, 
or  in  such  production  to  the  Obligee  or  his  Executors,  Adminis- 
trators or  Assigns,  on  or  before  the  first  day  of  December  of  each 
and  every  year,  of  such  receipts  for  such  taxes  and  water  rates 
of  the  current  year  assessed  upon  the  premises  described  in  the 
Mortgage  accompanying  said  Obligation,  then  and  in  such  case 
the  whole  principal  debt  aforesaid,  shall,  at  the  option  of  the  said 
Obligee  his  Executors,  Administrators  or  Assigns,  become  due 
and  payable  immediately,  and  payment  of  said  principal  debt,  and 
all  interest  thereon,  may  be  enforced  and  recovered  at  once,  any 
thing  therein  contained  to  the  contrary  notwithstanding.  And 
Provided  further,  however,  and  it  is  thereby  expressly  agreed, 
that  if  at  any  time  thereafter,  by  reason  of  any  default  in  the 
maintenance  of  said  insurance,  or  in  payment,  either  of  said 
principal  sum,  at  maturity,  or  of  said  interest,  or  in  production 
of  said  receipts  for  taxes  and  water  rates  within  the  time  speci- 
fied, a  writ  of  Fieri  Facias  is  properly  issued  upon  the  Judgment 


386  Conveyancing  in   Pennsylvania. 

obtained  upon  said  Obligation,  or  by  virtue  of  this  warrant,  or  a 
writ  of  Scire  Facias  is  properly  issued  upon  the  accompanying 
Indenture  of  Mortgage,  an  attorney's  commission  for  collection, 
viz :  five  per  cent.,  shall  be  payable,  and  shall  be  recovered  in 
addition  to  all  principal  and  interest  then  due,  besides  costs  of 
suit.  These  are  to  desire  and  authorize  you,  or  any  of  you,  to 
appear  for  us,  our  Heirs,  Executors  or  Administrators,  in  the 
said  Court  or  elsewhere,  in  an  appropriate  form  of  action  there 
or  elsewhere  brought  or  to  be  brought  against  us,  our  Heirs,  Ex- 
ecutors or  Administrators  at  the  suit  of  the  said  Obligee  his 
Executors,  Administrators  or  Assigns,  on  the  said  Obligation,  as 
of  any  term  or  time  past,  present,  or  any  other  subsequent  term 
or  time  there  or  elsewhere  to  be  held,,  and  confess  judgment  there- 
upon against  us,  our  Heirs,  Executors  or  Administrators,  for  the 
sum  of  Twelve  Hundred  Dollars  lawful  money  of  the  United 
States  of  America,  debt,  besides  costs  of  suit,  and  an  attorney's 
commission  of  five  per  cent,  in  case  payment  has  to  be  enforced 
by  process  of  law  as  aforesaid,  by  Non  sum  informatus,  Nihil 
dicit,  or  otherwise,  to  you  shall  seem  meet:  And  for  your, 
or  any  of  your  so  doing,  this  shall  be  your  sufficient  warrant. 
And  we  do  hereby  for  us,  our  Heirs,  Executors  or  Administra- 
tors, remise,  release  and  forever  quit  claim  unto  the  said  Obligee 
his  certain  Attorney,  Executors,  Administrators  and  Assigns,  all 
and  all  manner  of  error  and  errors,  misprisions,  misentries,  de- 
fects and  imperfections  whatever,  in  the  entering  of  the  said 
judgment,  or  any  process  or  proceedings  thereon  or  thereto,  or 
anywise  touching  or  concerning  the  same. 

In  Witness  Whereof,  We  have  hereunto  set  our  hand.?  and 
seal?  this  Seventeenth  day  of  August  in  the  year  of  our  Lord  one 
thousand  nine  hundred  and  ten  (ipio). 

Sealed  and  Delivered  ^ 

in  the  presence  of  us :  I                             M.  N.         (Seal.) 

F.  N.  W.,  f                         J.  N.          (Seal.) 

W.  N.  N.  J 

See  note  to  the  mortgage  immediately  preceding  page  379. 

S?62.     Leasehold  Mortgage.* 

This  Indenture,  made  the  Tenth  day  of  June,  A.  D.  1902, 
between  Adam  Jones  and  Ernest  Brown  of  the  first  part,  who 

*See  note  at  end  of  this  lease  form,  page  388. 


Forms.  387 

by  bond  of  this  date  stand  indebted  to  Charles  Doe  of  the 
second  part,  in  the  sum  of  $1,000,  conditioned  for  the  payment  of 
$500,  as  follows: 

WITNESSETH,  That  in  consideration  of  the  debt  above  men- 
tioned, and  to  better  secure  the  payment  thereof,  with  interest, 
&c,  said  parties  of  the  first  part  do  hereby  give,  grant,  sell  and 
convey  to  said  party  of  the  second  part  his  heirs  and  assigns,  all 
that  certain  leasehold  estate,  situated  in  Rockill  Township,  Bucks 
County,  and  State  of  Pennsylvania,  being  a  part  of  the  Smith 
farm,  and  bounded  and  described  as  follows:  (here  set  out  the 
description  of  leased  premises). 

The  original  lease  whereof  bearing  date  the  30  day  of  April, 
A.  D.  1902,  between  Robert  Smith  and  Adam  Jones  and 
Ernest  Brown,  is  recorded  in  the  recorder's  office  of  said  county 
of  Bucks,  in  Deed  Book  No.  301,  page  172.  (Note. — If  the 
Lease  has  not  yet  been  recorded,  insert  after  names  of  parties  "is 
intended  to  be  recorded  herewith,"  instead  of  foregoing  clause)  ; 
together  with  all  machinery  and  fixtures  thereon,  Steam  boiler, 
Corliss  engine,  Water  tank,  300  feet  of  tubing,  50  feet  of  casingr 
12  feet  of  sucker  rods,  enginehouse,  derrick  and  all  tools  thereon, 
and  all  and  singular  the  appurtenances  thereto  belonging.  To 
have  and  to  hold  the  said  premises,  with  the  appurtenances 
thereto,  unto  said  party  of  the  second  part,  his  heirs  and  assigns 
forever.  Provided,  that  if  the  parties  of  the  first  part,  their 
heirs,  executors,  administrators  or  assigns,  pay  to  the  party  of  the 
second  part,  his  heirs,  executors,  administrators  or  assigns,  said 
sum  of  $500,  according  to  the  condition  of  the  above  in  part 
recited  bond,  then  these  presents  and  the  estate  hereby  granted 
shall  cease  and  be  utterly  void. 

Provided  further,  in  case  of  default  of  any  payment,  thereupon 
it  shall  be  lawful  for  the  said  mortgagee  or  his  legal  representa- 
tives, to  sue  out  forthwith  a  writ  or  writs  of  scire  facias  (any 
law,  usage  or  practice  to  the  contrary  notwithstanding;  upon 
which  scire  facias,  when  so  sued  out,  either  before  or  after  ser- 
vice of  same,  judgment  may  be  confessed,  with  or  without 
declaration  filed,  by  any  attorney  of  any  court  of  record,  in  favor 
of  said  mortgagee,  his  heirs  or  assigns,  and  against  the  said 
Mortgagors,)  for  the  whole  amount  of  the  debt  and  interest 
thereby  secured  which  then  remains  unpaid,  to  which  may  be 
added  five  per  cent,  on  the  whole  sum  as  attorney's  fees  for  col- 
lecting the  same,  upon  which  judgment  execution  may  be  issued 


388  Conveyancing   in   Pennsylvania. 

for  any  payment  or  payments  and  interest  then  due.  And  there- 
after execution  may  be  issued  upon  said  judgment  as  often  as 
default  shall  be  made  in  the  payment  of  debt  on  interest,  or  both. 
Also  the  parties  of  the  first  part  waive  all  equity  of  redemption 
under  any  Act  of  Assembly  now  in  force,  and  all  exemption  laws 
of  this  Commonwealth. 

In  Witness  Whereof,  the  said  parties  of  the  first  part  have 
hereunto  set  their  hands  and  seals,  the  day  and  year  first  above- 
written. 

Signed,  sealed  and  delivered  "^ 
in  the  presence  of  us,  I  Adam  Jones.  (Seal.) 


Andrew  Jackson, 
Henry  Haas. 


Ernest  Brown.         (Seal.) 


Bucks  County,  j^: 

On  the  Tenth  day  of  June,  A.  D.  1902,  before  me  the  subscriber 
a  Notary  Public  for  the  Commonwealth  of  Pennsylvania,  residing 
in  Doylestown  personally  appeared  Adam  Jones  and  Ernest 
Brown,  who  in  due  form  of  law  acknowledged  the  above  In- 
denture of  Mortgage  to  be  their  act  and  deed  and  desired  the 
same  to  be  recorded  as  such. 

Witness  my  hand  and  notarial  seal  the  day  and  year  afore- 
said. 

Andrew  Jackson, 
Notary  Public. 

Commission  expires  Feb.  1,  1905.  (Seal.) 

The  original  lease  as  well  as  this  mortgage  must  be  recorded  in  the 
recorder  of  deeds'  office  of  the  county  wherein  the  land  lies.  Be  careful 
to  see  that  the  lease  is  acknowledged  else  it  cannot  be  recorded. 

The  lease  must  be  recorded  either  before  or  at  the  same  time  as  the 
mortgage.    The  mortgage  should  be  recorded  immediately  after  execution. 

263.  Release  of  Mortgage. 

See  form,  paragraph  99,  page  132. 

264.  Release  of  Lien  of  Judgment. 

In  the  Court  of  Common  Pleas 

for  Philadelphia  County. 
June  Term,  1904.     No.  441. 


Forms.  389 

I,  F.  G.  D.,  the  plaintiff  in  the  above  stated  Judgment  at  the 
request  of  W.  F.  C.  the  defendant  therein,  and  for  and  in  con- 
sideration of  the  sum  of  One  ($1.00)  Dollar  to  me  in  hand  paid 
by  the  said  W.  F.  C.  at  the  time  of  the  execution  hereof,  the  re- 
ceipt whereof  is  hereby  acknowledged,  do  for  myself,  my  heirs, 
executors,  and  administrators,  covenant,  promise  and  agree  to 
and  with  the  said  W.  F.  C.  his  heirs  and  assigns  by  these  presents, 
that  I  will  not  at  any  time  hereafter  sell  or  dispose  of,  attach  or 
levy  upon,  or  claim  or  demand  the  premises  hereinafter  de- 
scribed, with  the  appurtenances,  to  wit: 

All  That  Certain  triangular  lot  or  piece  of  ground  with  the 
two  story  building  thereon  erected,  situate  at  the  intersection  of 
the  North  West  Corner  of  Moyamensing  Avenue  and  the  South 
West  Corner  of  Jackson  Street  in  the  First  Ward  of  the  City 
of  Philadelphia,  containing  in  front  on  the  said  Moyamensing 
Avenue  sixty-two  feet  eleven  and  three-fourths  inches  and  on 
Jackson  Street  ninety  feet  five  and  three-eighths  inches  and  at 
the  rear  end  thirty-six  feet  or  any  part  thereof,  by  virtue  of  the 
said  Judgment  so  that  the  said  W.  F.  C.  his  heirs  and  assigns  shall 
and  may  hold  the  same  free  and  clear  of  and  from  the  lien  of 
the  said  Judgment,  provided,  however,  that  nothing  herein  con- 
tained, shall  invalidate  the  lien  or  security  of  the  said  Judgment 
upon  the  other  estate  of  the  said  W.  F.  C. 

In  Witness  Whereof  I  have  hereunto  set  my  hand  and  seal 
this  day  of  December,  A.  D.  one  thousand  nine  hun- 

dred and  four  (1904). 

Sealed  and  Delivered  in 

F.  G.  D.         (Seal.) 
(Seal.) 


the  presence  of  us 
M.  A.  B., 
F.  T.  D. 


This  release  should  be  filed  in  the  prothonotary's  office  as  to  the  term 
and  number  of  the  judgment. 

265.     Recital  of  Title  by  Deed. 

See  form,  paragraph  54  F,  page  70.  Recitals  by  deed  are 
placed  immediately  after  the  description,  see  form  of  deed  para- 
graph 53,  page  64.  Where  however  the  recital  is  very  long  it  is 
customary  to  place  it  after  the  names  of  the  parties  immediately 
before  the  granting  clause  as  in  deed  forms  par.  234,  235. 


390  Conveyancing  in  Pennsylvania. 

566.     Another  Form  for  Recital  of  Title  by  Deed. 

Being  the  same  (or,  part  of  the  same)  premises  which  Edward 
Fell,  and  Mary,  his  wife,  indenture,  bearing  date  the  Fifth  day 
of  July,  A.  D.  one  thousand  nine  hundred  and  ten,  (recorded  in 
the  office  for  the  Recording  of  Deeds,  in  and  for  the  County  of 
Philadelphia,  in  Deed  Book,  No.  ,  page  ),  did  grant  and 
confirm  unto  the  said  Adam  Brown,  party  hereto,  and  to  his  heirs 
and  assigns  for  ever,  as  in  and  by  the  said  in  part  recited  inden- 
ture, relation  being  thereunto  had,  more  fully  and  at  large  ap- 
pears. 

267.  Recital  of  Title  by  Patent. 

Whereas,  The  Commonwealth  of  Pennsylvania,  by  patent  or 
grant  under  the  great  seal,  bearing  date  the  Fifth  day  of  January, 
A.  D.  one  thousand  eight  hundred  and  nine,  for  the  consideration 
therein  mentioned,  did  grant  or  confirm  unto  Adam  Brown,  and 
to  his  heirs  and  assigns,  a  certain  tract  of  land,  situate  in  the 
Township  of  ,  in  the  County  of  afore- 

said, by  marks  and  bounds  in  said  patent  particularly  described, 
containing  acres  and  the  allowance  of  six  per  cent,  for 

roads,  &c,  with  the  appurtenances :  To  hold  the  said  to  him,  his 
heirs  and  assigns  forever,  as  in  and  by  the  said  recited  patent 
(recorded  in  the  Land  Office,  in  Patent  Book  B,  page  ),  rela- 
tion being  thereunto  had,  more  fully  and  at  large  appears. 

268.  Recital  of  Title  by  Will. 

See  form  of  Recital  in  Devisees  deed  paragraph  170,  page  202. 
This  recital  is  also  usually  placed  immediately  after  the  descrip- 
tion, though  often  when  such  recital  is  lengthy  it  is  placed  imme- 
diately after  the  names  of  parties,  see  deed  form,  paragraph  234, 
page  290. 

269.  Recital  of  Title  by  Descent. 

See  form  of  Recital  of  one  inheriting  by  descent,  paragraph 
138,  page  181.  See  remarks  in  preceding  paragraph  (268)  as  to 
the  position  of  this  recital. 

270.  Another  Form  of  Recital  of  Title  by  Descent. 

Whereas  by  force  and  virtue  of  said  recited  indenture,  or  of 
some  other  good  conveyances  or  assurances  in  the  law  duly  had 
and  executed,  the  said  Adam  Brown  became,  in  his  lifetime,  law- 


Forms.  391 

fully  seised  in  his  demesne,  as  of  fee,  of  and  in  the  said  tract  of 
land,  with  the  appurtenances,  and  being  so  thereof  seised,  died 
intestate,  leaving  issue  four  children,  to  wit,  Henry,  John, 
Maria  (the  wife  of  J.  R.),  and  Andrew,  to  whom  the  same,  by 
the  laws  of  Pennsylvania  relating  to  intestates,  did  descend  and 
come. 

271.  Recital  of  Title  by  Patent,  Descent  and  Deed. 

Being  the  same  tract  of  land  which  the  Commonwealth  of 
Pennsylvania,  by  patent,  bearing  date  the  First  day  of  June,  A. 
D.  on  thousand  nine  hundred  and  three  (recorded  in  the  Land 
Office  for  the  State  of  Pennsylvania,  in  Patent  Book  C,  page 
),  for  the  consideration  therein  mentioned,  did  grant  and 
confirm  unto  B.  W.  in  fee,  who  being  thereof  lawfully  seised^  died 
intestate,  leaving  issue  M.  W.  and  D.  intermarried  with  R.  D:,  to 
whom  the  same,  by  the  laws  of  Pennsylvania,  did  descend  and 
come.  And  the  said  M.  W.  and  R.  D.  and  D.,  his  wife,  by  their 
joint  indenture,  bearing  date  the  day  of  , 

A.  D.  One  thousand  nine  hundred  and  ,  for  the  con- 

sideration therein  mentioned,  did  grant  and  confirm  the  same  unto 
the  said  Adam  Brown,  (party  hereto)  in  fee,  as  in  and  by  the 
said  indenture  (recorded  in  the  office  for  recording  of  deeds  at 
,  in  Book  B,  Page  ),  relation  being  thereunto 
had,  appears. 

272.  Recital  of  Title  by  Adverse  Possession. 

Being  the  same  premises  which  Jonathan  Wall  by  Indenture 
bearing  date  the  First  day  of  January,  1871,  and  recorded  at 
Philadelphia  in  deed  book  T.  M.  No.  16,  page  321,  &c,  granted 
and  conveyed  unto  Andrew  Smith  in  fee.  And  Thomas  Bayard 
on  to  wit,  June  17,  A.  D.  1882,  entered  into  possession  and  by 
virtue  thereof  held  actual  adverse,  continued,  visible  notorious, 
distinct  and  hostile  possession  thereof  unto  the  present  time,  being 
a  period  of  more  than  forty  years,  so  that  a  perfect  and  inde- 
feasible title  in  fee  to  said  premises  became  vested  in  the  said 
Thomas  Bayard,  by  virtue  of  the  statute  of  limitations  of  the 
Commonwealth  of  Pennsylvania. 

273.  Recital  of  Title  by  Voluntary  Deed  of  Partition. 

And  Whereas,  by  indenture  of  partition  between  the  said 
Adam  Brown  of  the  one  part,  and  the  said  George  Herman  of 


392  Conveyancing  in  Pennsylvania. 

the  other  part,  bearing  date  the  Fifth  day  of  September,  A.  D. 
one  thousand  nine  hundred  and  two,  partition  of  the  said  mes- 
suage, &c.,  with  the  appurtenances,  was  made  between  the  said 
parties,  wherein  and  whereby  the  piece  or  parcel  thereof,  bounded 
and  limited  as  follows,  to  wit :  Beginning,  &c,  containing 
acres  and  allowances  aforesaid,  was  released  and  confirmed  to  the 
said  George  Herman,  his  heirs  and  assigns:  To  hold  to  him, 
the  said  George  Herman,  his  heirs  and  assigns,  in  severalty  for- 
ever, as  in  and  by  the  said  indenture  of  partition  (recorded  in  the 
office  for  recording  of  deeds  at  ,  in  Book  E,  page 

) ,  relation  being  thereunto  had,  appears. 

274.  Recital  of  Title  by  Order  of  Orphans'  Court  in  Partition. 
Being  the  same  premises  of  which  Adam  Brown,  died  intes- 
tate, and  upon  which,  on  due  application  to  the  Orphans'  Court 
for  the  County  of  of  April  Term  1902,  No.  94,  an 
order  was  granted  by  the  said  court,  whereupon  the  said  premises 
were  duly  valued  and  appraised,  and  by  the  said  court  adjudged 
and  confirmed  on  the  day  of  ,A  D.  one 
thousand  nine  hundred  and  ,  unto  the  said  G.  B.,  eldest 
son  of  the  said  deceased  (or,  as  the  case  may  be)  :  To  hold  the 
same  to  the  said  G.  B.,  and  to  his  heirs  and  assigns  forever,  as 
in  and  by  the  records  and  proceedings  of  the  said  court,  relation 
being  thereunto  had,  appears. 

275.  Recital  of  Title  by  Writ  of  Partition. 

And  WhEREas  by  virtue  of  a  certain  writ  de  partitione  faci- 
enda,  issuing  out  of  the  Court  of  Common  Pleas  for  the  County 
of  aforesaid,  of  September  Term,  1902,  No.  35,  bear- 

ing date  the  day  of  ,  A.  D.  one  thousand 

nine  hundred  and  ,  for  partition  of  the  said  tract  of 

land,  with  the  appurtenances,  there  was  duly  allotted  and  assigned 
unto  the  said  George  Herman,  a  certain  piece  or  parcel  of  land 
(part  of  the  said  tract)  bounded  and  described  as  follows,  viz., 
beginning  at,  &c,  containing  acres  and  allowance  afore- 

said, with  the  appurtenances :  To  hold  the  same  to  him,  the  said 
George  Herman,  his  heirs  and  assigns,  in  severalty  forever,  as 
by  the  said  writ  de  partitione  facienda,  and  return  of  the  sheriff 
thereupon  duly  made,  and  remaining  amongst  the  records  and 
proceedings  of  the  said  court,  recourse  being  thereunto  had,  ap- 
pears. 


Forms.  393 

276.  Recital  of  Title  by  Attorney  in  Fact. 

And  whereas  the  said  Charles  Ryan,  by  his  attorney  Joseph 
Rogers  (by  letter  of  attorney,  under  the  hand  and  seal  of  the 
said  Charles  Ryan,  bearing  date  the  Fifth  day  of  January,  A. 
D.  one  thousand  nine  hundred  and  one,  recorded  in  the  office  for 
recording  deeds  for  the  City  and  County  of  Philadelphia,  in  Let- 
ter of  Attorney  Book,  No.  ,  Page  ),  did,  by  indenture, 
bearing  date  the  day  of  ,  A.  D.  one  thou- 

sand nine  hundred  and  ,  and  recorded  in  the  office  for 

the  recording  of  deeds  in  and  for  the  county  of  in 

Deed  Book  No.  page  ,  etc.,  grant  and  convey  unto  George 
Hartman  in  fee. 

277.  Recital  of  Title  by  Executors. 

And  whereas  the  said  A.  R.  and  E.  R.  executors  of  the  last 
will  and  testament  of  the  said  I.  L.,  deceased,  by  virtue  of  the 
power  and  authority  to  them  given  by  the  said  will,  and  pursuant 
to  the  direction  thereof,  did,  by  indenture,  under  their  hands  and 
seals,  bearing  date  the  Sixth  day  of  January,  A.  D.  one  thousand 
nine  hundred  and  One,  for  the  consideration  therein  mentioned, 
grant  and  confirm  unto  E.  G.,  and  to  his  heirs  and  assigns,  all 
that  the  said  messuage  or  tenement  and  tract  of  acres 

of  land,  with  the  appurtenances:    To  hold  the  same  to  him,  his 
heirs  and  assigns,  forever,  as  in  and  by  the  said  recited  indenture 
(recorded  in  the  office  for  the  recording  of  deeds  at 
in  book  B,  page         ),  relation  being  thereunto  had,  appears. 

278.  Recital  of  Title  by  Administrator. 

And  whereas,  C.  D.,  Administrator  of  all  and  singular  the 
goods  and  chattels,  rights  and  credits,  which  were  of  the  said 
Adam  Brown,  at  the  time  of  his  death,  who  died  intestate,  by 
virtue  and  in  pursuance  of  an  order  of  the  Orphans'  Court  of  the 
said  County  of  ,  for  the  sale  of  the  real  estate  of  the 

said  intestate,  of  October  Term,  1910,  No.  15,  by  indenture  under 
the  hand  and  seal  of  the  said  C.  D.,  bearing  date  the  day 

of  ,  A.  D.  one  thousand  nine  hundred  and  ten,  for 

the  consideration  therein  mentioned,  did  grant  and  confirm  unto 
Fred  Green,  and  to  his  heirs  and  assigns,  all  that  the  said  above- 
mentioned  and  described  tract  of  acres  and  allowance 
aforesaid,  with  the  appurtenances :  To  hold  the  same  to  him,  his 
heirs  and  assigns,  forever,  as  in  and  by  the  said  last  recited  in- 


394  Conveyancing  in  Pennsylvania. 

denture  (recorded  in  the  office  for  recording  of  deeds,  an  and  for 
the  county  of  ,  in  Book  No.         ,  Page         ),  relation 

being  thereunto  had,  appears. 

279.  Recital  of  Title  by  Sheriff's  Sale. 

And  whereas  H.  L.,  High  Sheriff  of  the  County  of  Philadel- 
phia aforesaid,  by  deed  poll,  under  his  hand  and  seal,  bearing  date 
the  First  day  of  June,  A.  D.  one  thousand  nine  hundred  and  two, 
recorded  (in  the  Prothonotary's  office  of  the  Court  of  Common 
Pleas  No.  2,  for  the  City  and  County  of  Philadelphia,  in  Sheriff's 
Deed  Book  M  No.  3,  page  295,  &c.)*  for  the  consideration  therein 
mentioned,  by  virtue  of  a  certain-  writ  of  venditioni  exponas 
or  (Levari  Facias,  as  the  case  may  be)  therein  recited,  granted 
and  confirmed  unto  C.  G.,  and  to  his  heirs  and  assigns,  the  said 
premises  above  described,  late  the  estate  of  the  said  Adam 
Brown,  with  the  appurtenances:  To  hold  the  same  to  the  said 
C.  G.,  his  heirs  and  assigns  forever,  according  to  the  Act  of  Gen- 
eral Assembly  in  such  case  made  and  provided,  as  by  the  said  re- 
cited deed  poll,  duly  acknowledged,  and  entered  among  the  re- 
cords of  the  Court  of  Common  Pleas  of  the  said  county,  rela- 
tion being  thereunto  had,  appears. 

*Since  the  Act  of  April  22,  1905,  Sec.  1,  P.  L.  265,  the  sheriff  is  required 
to  record  his  deeds  after  execution  at  the  office  for  recording  of  deeds  of 
the  proper  county,  so  that  a  recital  of  a  sheriff's  deed  after  that  act  should 
read  "And  recorded  in  the  office  for  recording  of  deeds  in  and  for  the 
County  of  Philadelphia,  in  deed  book  No.  — ,  page  — ,  etc."  Under  the 
provision  of  the  act  of  1905  sheriff's  deeds  are  no  longer  recorded  in  full 
in  the  prothonotary's  office,  only  a  certificate  thereof  is  there  recorded. 

280.  Recital  of  Title  by  Sheriff  for  Property  of  a  Decedent. 

It  being  the  same  lot  of  ground,  No.  ,  which  E.  H.,  High 
Sheriff  of  the  County  of  ,  by  deed  poll,  under  his  hand 

and  seal,  bearing  date  the  Sixteenth  day  of  July,  A.  D.  one  thou- 
sand nine  hundred  and  four,  for  the  consideration  therein  men- 
tioned, did  (as  late  the  estate  of  S.  G.)  grant  and  confirm  unto 
the  said  C.  L.,  party  hereto,  in  fee,  as  in  and  by  the  said  deed 
poll  entered  among  the  records  of  the  Court  of  Common  Pleas 
for  the  County  of  (and  recorded  in  the  office  for 

recording  of  deeds  at  in  Deed  Book  J.  V.  No.  321,  Page  42),  re- 
lation being  thereunto  had,  appears. 


Forms.  395 

281.  Recital  in  Purchase-Money  Mortgage,  Given  to  a  Third  Party. 
Being  the  same  premises  which  William  Stone  by  indenture 

bearing  even  date  herewith,  but  executed  and  delivered  before 
these  presents,  and  intended  forthwith  to  be  recorded,  for  the 
consideration  therein  mentioned,  part  whereof  has  been  ad- 
vanced by  Charles  Dolan,  and  is  intended  to  be  hereby  secured, 
granted  and  conveyed  unto  the  said  Isaac  Long  in  fee :  the  said 
William  Stone  having  assigned  his  right  to  a  purchase-money 
mortgage  unto  the  said  Charles  Dolan. 

282.  Recital  of  Executor's  or  Administrator's  Deed  for  Land  Sold  at 

of  May  9,  1889  (P.  L.  182),  as  Amended  by  Act  of  June  9, 
Private  Sale  for  Payment  of  Decedent's  Debts  Under  the  Act 
1911  (P.  L.  724). 

WHEREAS,  W.  W.  B.  was  in  his  life  time  lawfully  seised  in 
his  demesne  as  of  fee,  of  and  in  the  lot  or  piece  of  ground  and 
premises  hereinafter  particularly  described  with  the  appurtenances 
and  being  so  thereof  seised  as  aforesaid  departed  this  life  on  the 
first  day  of  December,  A.  D.  1910,  having  first  made  and  pub- 
lished his  last  Will  and  Testament  in  writing  bearing  date  the 
24th  day  of  December,  A.  D.  1909,  duly  proven  the  15th  day  of 
January,  A.  D.  191 1,  and  registered  in  the  Office  of  the  Register 
of  Wills  in  and  for  the  City  and  County  of  Philadelphia  in  Will 
Book  No.  382,  page  136,  &c. 

WHEREIN  and  WHEREBY  after  directing  the  payment  of 
his  just  debts  and  funeral  expenses  he,  the  said  W.  W.  B.,  did  will 
and  direct  as  follows : — 

"Second,  I  give,  devise  and  bequeath  unto  my  beloved  wife, 
R.  A.,  her  heirs  and  assigns  forever  all  my  property,  real,  per- 
sonal and  mixed  of  what  nature  or  kind  soever  and  wheresoever 
the  same  shall  be  at  the  time  of  my  death." 

AND  WHEREAS,  R.  A.  B.  being  so  lawfully  seised  in  her  de- 
mesne as  of  fee  of  the  premises  hereinafter  particularly  described 

*The  Act  of  June  9th,  191 1,  P.  L.  724.  requires  that  before  the  orphans' 
court  shall  authorize,  decree  or  approve  a  private  sale  of  real  estate  for 
payment  of  a  decedent's  debts,  notice  must  be  advertised  in  at  least  one 
newspaper  and  in  the  legal  periodical,  if  any,  designated  by  the  court  for 
the  publication  of  legal  notices  published  in  the  county  where  the  real  estate 
is  located.  Written  or  printed  notices  must  also  be  posted  on  the  premises 
and  at  at  least  three  most  public  places  in  the  vicinity.  In  drawing  a  deed 
for  real  estate  so  sold,  compliance  with  this  act  should  be  recited  as  in  the 
above  form. 


396  Conveyancing  in  Pennsylvania. 

with  the  appurtenances,  departed  this  life  on  the  fifth  day  of 
March,  A.  D.  191 1,  having  first  made  and  published  her  last  Will 
and  Testament  in  writing  bearing  date  the  second  day  of  October, 
A.  D.  1910,  and  duly  proven  the  thirteenth  day  of  March,  A.  D. 
191 1,  and  registered  in  the  Office  of  the  Register  of  Wills  in  and 
for  the  city  and  county  of  Philadelphia,  in  Will  Book  No.  326, 
page  129,  &c. 

WHEREIN  and  WHEREBY  after  directing  the  payment  of 
her  just  debts  and  funeral  expenses  she  the  said  R.  A.  B.  did  will 
and  direct  as  follows : — 

"Second,  All  the  rest,  residue  and  remainder  of  my  estate,  real, 
personal  and  mixed  of  whatsoever  kind  and  wheresoever  situate, 
I  give  and  devise  and  bequeath  unto  my  children  and  my  two 
grandchildren,  namely,  L.,  daughter  of  my  son,  W.  W.  B.,  Jr.,  de- 
ceased, and  E.,  daughter  of  my  deceased  daughter,  M.  S.,  their 
heirs  and  assigns,  to  be  equally  divided  between  them,  share  and 
share  alike." 

"Third,"  "I  nominate,  constitute  and  appoint  T.  F.  B.  to  be  the 
executor  of  this  my  last  Will  and  Testament." 

AND  WHEREAS,  At  an  orphans'  court  for  the  city  and  county 
of  Philadelphia,  held  on  the  first  day  of  October,  A.  D.  191 1,  the 
petition  of  T.  F.  B.,  executor  of  the  estate  of  R.  A.  B.,  deceased, 
was  presented,  SETTING  FORTH  "That  the  said  R.  A.  B.  was 
seised  in  her  demesne  as  of  fee  of  the  hereinafter  described  prem- 
ises." "That  there  are  not  sufficient  personal  assets  to  pay  the 
claims  due  from  the  estate  of  said  decedent  to  the  creditors  there- 
of." That  all  persons  and  parties  interested  in  said  real  estate  being 
sui  juris  or  by  guardian  have  consented  to  the  sale  of  the  herein- 
after described  premises.  That  the  petitioner  has  been  unable 
to  dispose  of  said  premises  at  public  sale  for  a  fair  or  market 
price.  That  G.  L.  has  offered  to  purchase  the  said  real  estate 
hereinafter  described  for  the  price  or  sum  of  twenty-five  hundred 
($2500.00)  dollars  clear  of  all  encumbrances  and  all  the  owners 
of  said  real  estate  have  agreed  to  sell  at  said  price  and  that  proper 
and  necessary  deeds  and  assurances  for  said  real  estate  should 
be  executed  to  the  said  G.  L.  and  a  perfect  title  for  the  same  made 
to  him  for  the  payment  of  debts  of  the  decedent,  R.  A.  B. 

The  petitioner  therefore  prayed  the  court  to  approve  of  the 
price  offered  for  said  real  estate  and  authorize  petitioner  to  sell 
said  real  estate  to  G.  L.  for  the  price  and  sum  of  twenty-five 


Forms.  397 

Tiundred  ($2500.00)  dollars  for  the  payment  of  debts  of  the  dece- 
dent, R.  A.  B. 

WHEREUPON  after  due  advertising  and  notice  to  all  heirs, 
creditors  and  parties  in  interest  in  accordance  with  the  Act  of  the 
General  Assembly  approved  June  9,  191 1,  in  such  case  made  and 
■provided,  the  court,  on  the  16th  day  of  October,  A.  D.  1912, 
upon  due  consideration  of  the  said  petition,  ordered,  adjudged 
and  decreed  that  the  petitioner  is  authorized  hereby  to  sell  the 
property  described  in  the  petition  at  private  sale  to  G.  L.  for  the 
price  or  sum  of  twenty-five  hundred  ($2500.00)  dollars  in  ac- 
cordance with  the  contract  of  sale  attached  to  and  made  part  of 
the  said  petition  for  the  payment  of  debts  of  the  said  decedent ; 
it  having  been  shown  to  the  court  that  due  notice  of  the  filing 
of  said  petition  has  been  given  in  accordance  with  the  Act  of 
June  9th,  191 1,  by  advertising  for  twenty  days  prior  to  the  pre- 
sentation of  this  petition  to  the  court  and  by  posting  notice  of 
said  application  on  the  property  and  in  three  of  the  most  public 
places  in  the  vicinity  thereof. 

Security  to  be  entered  by  the  petitioner  in  the  sum  of  five 
thousand  ($5,000.00)  dollars,  which  security  has  been  duly  en- 
tered in  the  orphans'  court  on  November  1st,  191 2. 

Now  this  Indenture  Witnesseth,  &c.,  !&c,  (here  follows  rest 
of  deed,  see  forms,  par.  234,  235). 

283.  Other  Recitals. 

For  other  Recitals  of  Title  under  various  Court  proceedings, 
etc.,  consult  carefully  the  Deed  Forms,  paragraphs  234,  235. 

284.  Form  of  Will. 

See  form,  paragraph  163,  page  196. 

285.  Clause  of  Will  Giving  Executor  Power  and  Directing  Him  to 

Sell  Real  Estate. 

I  order  and  direct  my  executor  hereinafter  named  to  sell  all 
my  real  estate  at  public  or  private  sale  (without  any  liability  of 
purchasers  for  the  application,  non-application  or  misapplication 
of  purchase  money)*  and  upon  any  such  sale  thereof  I  order 

*Since  the  Act  of  June  10,  A.  D.  191 1,  Sec.  1,  P.  L.  874,  now  relieves 
purchasers  of  executors  and  trustees  under  a  will  from  the  obligation  of 
seeing  to  the  application  of  the  purchase  money,  the  clause  in  brackets 
may  now  be  omitted. 


398  Conveyancing  in  Pennsylvania. 

and  direct  my  said  executor  to  distribute  and  pay  the  net  pro- 
ceeds of  sale  as  follows,  viz : 

286.  Codicil. 

See  form,  paragraph  164,  page  197. 

287.  Form  of  Codicil  for  a  Child  Born  After  Date  of  Will. 

I,  Earl  Green,  do  hereby  make  this  a  codicil  to  my  last  will  and 
testament,  dated  the  Twenty-fourth  day  of  November,  1906,  viz: 
My  son,  Charles,  having  been  born  after  the  date  of  said  will,  I 
do  hereby  provide  for  and  give,  devise  and  bequeath  unto  him  and 
his  heirs  in  fee  simple  and  absolutely  one-fourth  part  and  share 
of  all  my  estate,  real,  personal  and  mixed,  and  so  that  he  shall 
have  and  receive  an  equal  part  of  my  said  estate  with  my  other 
children  in  lieu  of  any  share  he  may  have  under  the  intestate  laws, 
and  I  reduce  and  revoke  the  shares  of  my  other  children  accord- 
ingly, so  as  to  provide  for  said  share  for  my  son,  Charles,  and  I 
appoint  my  wife  as  guardian  of  his  person  and  estate  and  with 
this  change  and  in  all  other  respects  1  do  coniirm  my  said  will. 

In  Witness  Whereof,  I  have  hereunto  set  my  hand  and  seal 
this  first  day  of  October,  A.  D.  1912. 

Earl  Green.         (Seal.) 

Signed,  Sealed,  Published,  and  Declared  by  the  above-named 
Earl  Green,  as  and  for  his  last  will  and  testament,  in  the  pres- 
ence of  us,  who  have  hereunto  subscribed  our  names  at  his  re- 
quest as  witnesses  thereto  in  the  presence  of  the  said  testator,  and 
of  each  other. 

William  Long,  3452  X  St.,  Phila.,  Pa. 

Albert  Strong,  131  Y  St.,  Phila.,  Pa. 

It  is  good  practice  to  have  subscribing  witnesses  of  both  wills  and 
codicils.    Write  their  addresses  after  their  signatures. 

It  is  not  necessary  that  a  provision  for  an  afterborn  child  actually  leave 
a  portion  of  the  testator's  estate  to  him ;  it  is  only  necessary  to  show  that 
the  testator  had  the  afterborn  child  in  mind  when  he  made  the  codicil  or 
will ;  thus  in  Randall  v.  Dunlop,  218  Pa.  210,  the  following  provision  was 
held  to  be  sufficient:  "Afterborn  children  are  herein  provided  for."  (See 
Par.  168,  page  201).  "The  question  whether  the  provision  is  large,  small, 
equal  or  unequal,  vested  or  contingent,  present  or  future  is  irrelevant." 
(Newlin's  Estate,  209  Pa.  456.) 


TABLE  OF  CASES  CITED 


Page. 
Addison    v.     Wanamaker,     185 

Pa.  536  243 

Ahl  v.  Rhoads,  84  Pa.  319  ...  112 
Alexander  v.  Bush,  46  Pa.  62..  67 
Alexander  v.   Shallala,  228  Pa. 

297    41 

Alles  v.  Lyon,  216  Pa.  604  ...  22 
Anderson    v.    Brinser,    129    Pa. 

376   214 

Ardisco  v.  N.  A.  Oil  Co.,  66  Pa. 

375 44 

Armstrong  v.  Boyd,  3  P.  &  W. 

458   69 

Ashcom  v.   Smith,  2   P.  &  W. 

211    55 

Atkinson    v.    Walton,    162    Pa. 
219    102 

Auman  v.  Auman,  21  Pa.  343. .     68 

Bagley  v.  Wallace,  16  S.  &  R. 

245    43 

Baker's  Appeal,  107  Pa.  381  .  .  194 
Bank  of  Commerce  v.  Peace,  27 

Pa.  Super.  644   149 

Barber  v.  Miller,  41  Pa.  Super. 

442    244 

Bayard    v.    Farmers'    and    Me- 
chanics'   National    Bank,    52 

Pa.    237 42 

Beard  v.  Dietz,  1  Watts  309  . .  208 
Bedford    Lodge    v.    Lentz,    194 

Pa.    399    73 

Beihl  v.  Martin,  236  Pa.  528  . .  22 
Bell  v.  Moredock,  54  Pitts.  L. 

J-   379    35 

Bitting's  Appeal,  17  Pa.  211  ..  209 
Black  v.  Pentony,  30  Pa.  Super. 

38   245 

Blight  v.  Schenk,  10  Pa.  285  .  .  82 

Bramberry's  Estate,  156  Pa.  628  21 
Brecht  v.  Bealis,  19  Pa.  D.  R. 

664    1 10 

Brown  v.  Mattocks,  103  Pa.  16  68 


Page. 
Buchanan    v.    Corson,    52    Pa. 

Super.  —   41 

Buchfield  v.  Griffith,   10  Super. 

618    242 

Burke  v.  Allen,  3  Yeates  351  . .  165 
Burton's  Appeal,  57  Pa.  217  . .     48 

Cadwallader  v.  App.  81  Pa.  194 

52,152 

Cake's  Appeal,  23  Pa.  186 113 

Ca'llaghan  v.   McCredy,  48  Pa. 

464   254 

Cape  May  R.  E.  Co.  v.  Hender- 
son, 231  Pa.  82 55 

Casey  v.  Canning,  43  Super.  31  72 
Cavanaugh  v.  Buehler,  120  Pa. 

441    245 

Chadwick  v.  Collins,  26  Pa.  138 

241,  242 

Charnley  v.  Hansbury,  13  Pa.  16  155 
Christ  Church  v.  Clark,  47  Pa. 

Super.  286   24 

Clauer  v.  Clauer,  22  Pa.  Super. 

395    81 

Clippinger  v.  Miller,  1  P.  &  W. 

64    209 

Coleman  v.   Reynolds,   181    Pa. 

317    82 

Collins  v.  Lynch,  157  Pa.  246  . .  32 
Colt  v.  Selden,  5  Watts  525  . .  52 
Commonwealth    v.    Baldwin,    1 

Watts  54   43 

Commonwealth  v.  Donnelly  Es- 
tate, 33  Pa.  C.  C.  601   163 

Commonwealth    v.    Haines,    97 

Pa.    228    82 

Commonwealth  v.  Schaeffer,  32 

Pa.  Super.  382   32 

Commonwealth  T.  &  T.  Co.  v. 

Ellis,    192   Pa.  321    113 

Connor  v.  Bell,  152  Pa.  44  . . .  32 
Cook  v.  Brightly,  46  Pa.  439..  155 
Cook  v.  Lovett,  17  D.  R.  347..   151 


399 


40o 


Conveyancing  in  Pennsylvania. 


Page. 

Cooper's  Estate,  4  Pa.  88 202 

Crawford  v.  Com.,  1  Watts  485  188 
Critchfield  v.  Critchfield,  24  Pa. 

100   81 

Cundey  v.  Hall,  208  Pa.  335  •  •  48 
Cunningham  v.  McCready,  219 

Pa.  594  I02 

Curry  v.  Raymond,  28  Pa.  144  159 
Cutter  v.  Pierson,  26  Pa.  Super. 

13    67 

Dahlem's  Estate,  175  Pa.  444..    114 

Dail  v.  Moore,  51  Mo.  589 83 

Daley  v.  Maitland,  88  Pa.  384  .  102 
Dare's  Estate,  9  D.  R.  431  ...  181 
Darlfngton    v.    Darlington,    160 

Pa.    65    59,245 

Daubert  v.  Eckert,  94  Pa.  255. .  no 
Davey  v.  Ruffell,  162  Pa.  443..  160 
Davis'  Estate,  27  Montg.  (Pa.) 

31    198 

Densmore  v.  Haggerty,  59  Pa. 

189    57 

Devine's  Appeal,  30  Pa.  35  r  •  •  *53 
Director's  of  Poor  v.  Royer,  43 

Pa.    146    186 

Dohnert's  Appeal,  64  Pa.  311  ..  24 
Dolph  v.  Hand,  156  Pa.  91  .  . .  39 
Duffy  v.   Duffy,  20  Pa.   Super. 

25    31 

Eberz  v.  Heister,  12  Pa.  Super. 

388    254 

Edwards'  Exec'rs  v.  Trumbull, 

50  Pa.  509  115 

Ellison  v.  Anderson,  no  Pa.  486  42 
Elsey  v.  McDaniel,  95  Pa.  472.  41 
Englert  v.  Englert,  198  Pa.  326  194 
Eshleman's  Appeal,  74  Pa.  42.  181 
Espy  v.  Anderson,  14  Pa.  308..  253 
Ermentrout  v.   Stitzel,   170  Pa. 

540    72 

Evan's  Appeal,  58  Pa.  238  .  .200,  201 
Evans'    Estate,    47    Pa.    Super. 

196    170 

Evans  v.  Evans,  29  Pa.  277   . .     52 

Fenn  v.  Dickey,  178  Pa.  258  . .  242 


Page. 
Fennell's  Estate,  207  Pa.  309  . .  186 
Finney's  Appeal,  59  Pa.  398  . .  67 
Fleek  v.  Zillhaver,  117  Pa.  213.  22 
Forman  v.  Hosier,  94  Pa.  418. .  42 
Foster  v.  Carson,  159  Pa.  477-  •   131 

Foster  v.  Gray,  22  Pa.  9  166 

Foulk  v.  Brown,  2  Watts  215  . .  29 
Freemansburg  B.  &  L.  Assn.  v. 

Watts,  199  Pa.  221   120 

Fries  v.  Null,  154  Pa.  573  • .160,  161 
Frowert's  Estate,  12  Phila.  148 

253,    254 

Gangwere's  Estate,  14  Pa.  117  37 
Gillespie    v.    Buffalo    R.    &    P. 

Rwy.  Co.,  204  Pa.  107   161 

Gilmour's  Estate,  154  Pa.  523..  198 
Gish  v.  Brown,  171  Pa.  479  ...  82 
Glading  v.  Frick,  88  Pa.  460  .  .  162 
Goldstein  v.  Hammell,  49  Super. 

39    2QI 

Goldstein  v.  Hammell,  236  Pa. 

305    201 

Grasseli  Chemical  Co.  v.  Biddle 

Co.,  22  Pa.  Super.  426 244 

Greenfield's  Estate,  14  Pa.  496  79 
Greenough  v.  Greenough,  11  Pa. 

497    x94 

Grove  v.  Kase,  195  Pa.  325 103 

Guentheor's  Estate,  235  Pa.  67  199 

Gunison  v.  Dime  Savings  Bank, 

157  Pa.  303   49 

Hacker's  Appeal,  121  Pa.  192  63,80 
Hads  v.  Tiernan,  213  Pa.  44  •  •  32 
Hagenbuck  v.  Philips,   112   Pa. 

284   no 

Hahn  v.  Bealor,  132  Pa.  242  . .  183 
Hampton  v.  Specknagle,  9  S.  & 

R.  212  246 

Hayes'  Appeal,  123  Pa.  no 32 

Hawk  v.  Senseman,  6  S.  &  R. 

24    30 

Heckman's  Estate,  236  Pa.  193  55 
Hedden's     Appeal,     17     Atlan. 

Rep.  29  42 

Hellman  v.   Hellman,  4  Rawle 

440    166 

Helsop  v.  Helsop,  82  Pa.  537  •  •   185 


Table  oe  Cases  Cited. 


401 


Page. 
Henderson  v.  Sonneborn,  30  Pa. 

Super.    182    244 

Hendrick  v.   Thomas,    106   Pa. 

327   209 

Hertzel  v.  Lincoln,  216  Pa.  60  .  22 
Hettrick's  Appeal,  58  Pa.  477. .  38 
Heysham  v.  Dettre,  89  Pa.  506  57 
Hiester  v.  Shaefer,  45  Pa.  537.  151 
Hippie  v.  Laird,  189  Pa.  472  242, 243 
Hoffman's  Estate,  2  Pears.  317  208 
Holmes  v.  Neaffi,  151  Pa.  392  . .  242 
Home  Bldg.  Ass'n  v.  Troth,  3 

Del.  Co.  169  134 

Hornet  v.  Singer,  35  Pa.  Super. 

491    152 

Hopkins  v.  Everely,  150  Pa.  117  246 
Horstman  v.  Gerker,  49  Pa.  282  131 
Hoover  v.  Potter,  42  Pa.  Super. 

21,   21,  281  Note 

Hughes  v.  Pickering,  14  Pa.  297    31 

Imhoff  v.  Witmers,  31  Pa.  243  38 
Ingersoll  v.  Sergeant,  1  Whart. 

337   141,151 

Isaacs  v.  Zugsmith,  103  Pa.  77.  245 

Jamison  v.  Jamison,  3  Whart. 

457   no 

Jeanne's  Estate,  228  Pa.  537..  196 

Johnson  v.  Furnior,  69  Pa.  455  in 

Johnson  v.  McCurdy,  83  Pa.  282  114 
Johnson  v.  Smith,  3  P.  &  W. 

496   61 

Kaiser's  Estate,  199  Pa.  269...  186 
Karcher  v.  Hoy,  151  Pa.  391  . .  73 
Kelly's  Estate,  236  Pa.  54  . .  196, 198 
Kelly  v.  Marshall,  172  Pa.  396  .  245 
Kemmerer  v.  Tool,  78  Pa.  147.  209 
Kessler's  Estate,  221  Pa.  314. .  196 
Kester  v.  Rockel,  2  W.  &  S.  369  254 
Keys  v.  Johnson,  68  Pa.  43  241,  242 
Kifer  v.  Yoder,  198  Pa.  308  . . .  242 
Killinger  v.  Reidenhauser,  6  S. 

&  R.  53i  186 

King   v.    Association,    106    Pa. 

165   57,6i 

Kirk's  Appeal,  87  Pa.  243   208 


Page. 
Kleckner  v.   Kleckner,  212  Pa. 

5i8    38 

Klenk's  Estate,  210  Pa.  572 21 

Knox  Estate,  131  Pa.  220 194 

Krause's  Appeal,  2  Whart.  398  208 
Krecker  v.  Shirey,  163  Pa.  534    48 

Ladley  v.  Creighton,  70  Pa.  490  129 
Lance  v.  Gorman,  136  Pa.  209.  253 
Land  Title  &  Trust  Co.  v.  Ful- 

mer,  24  Pa.  Super.  256 119 

Landis'  Appeal,  102  Pa.  467  ...  48 
Lane  v.  Reynard,  2  S.  &  R.  65 . .  23 
Leech  v.  Leech,  1  Phila.  244  193,  196 
Lessee  of  Foster  v.  Whitehill, 

2  Yeates  259  165 

Lewis  v.  Parrott,  37  W.  N.  C. 

330   185 

Lindsay  Brothers  Inc.  v.  Curtis 
Publishing    Company,    236 

Pa.  229  61 

Liquid  Carbonic  Co.  v.  Wallace, 

219  Pa.  457  214 

Long  v.  Ramsey,  1  S.  &  R.  72  .  81 
Lorah  v.  Nissley,  156  Pa.  329  .  63 
Lowenstein    v.    Armstrong,    27 

Pa.  Super.  543  55 

Lloyd  v.  Farrell,  48  Pa.  78  ... .  74 
Luce  v.  Cook,  227  Pa.  224 241 

McBride's  Estate,  81  Pa.  303  . .  184 
McCarather  v.  Com.,  5  W.  &  S. 

21    210 

McClure  v.  Jones,  121  Pa.  550  .  60 
McClurg  v.    Schwartz,   87    Pa. 

521   no 

McCombs  v.  Rowan,  59  Pa.  414  32 
McCormick    v.    Connell,    6    S. 

&  R.  151  152 

McCreery  v.  Hamlin,  7  Pa.  87  43 
McFadden's    Assigned    Estate, 

191  Pa.  624  136 

McFadden  v.  McFadden,  32  Pa. 

Super.  536  186 

McGuire    v.    Wilkes-Barre,    36 

Pa.  Super.  418  32 

McKay  v.   Meyer   Co.,  44  Pa. 

Super.  293   57,61 


402 


Conveyancing  in  Pennsylvania. 


Page. 
McMahon  v.  Ryan,  20  Pa.  329.  194 
McNeile  v.  Cridland,  168  Pa.  16  244 
McNitt's  Estate,  229  Pa.  71  . .  194 
Marshall  v.  Reed,  32  Pa.  Super. 

60    243 

May's  Estate,  218  Pa.  64 71 

Maxwell  v.  West,  23  Pa.  C.  C. 

302   243 

Meigs  v.  Tunnicliff,  214  Pa.  495  134 
Merritt  v.  Whitlock,  200  Pa.  50 

281  Note 

Messer    v.    Rhodes,    3    Brewst. 

180   72 

Mevey's  Appeal,  4  Pa.  80 166 

Miller  v.  Kenneck,  20  D.  R.  706  243 
Milligan  v.  Phipps,  153  Pa.  208    40 

Mills  v.  Ritter,  197  Pa.  353 186 

Miltimore  v.  Miltimore,  40  Pa. 

151    185 

Mitchell   v.    Phillipps,   236    Pa. 

311    4i 

Moore's  Estate,  50  Pa.   Super. 

76   199 

Moore  v.  Collishaw,  10  Pa.  224  31 
Moore  v.  Grow,   1    Pa.   Super. 

125   243 

Moore  v.  Miller,  147  Pa.  378  . .  86 
Moore  v.  Taylor,  29  W.  N.  C. 

495    58,  60 

Morgan's  Appeal,  126  Pa.  500  .  138 
Mt  Vernon  Bldg.  &  Loan  Ass'n 

v.  Brown   120  Note 

Murphy  v.  Campbell,  4  Pa.  480  72 
Myer's  Estate,  232  Pa.  89  ... .     21 

Nace  v.  Boyer,  30  Pa.  99 38 

National  Bank  of  Catasauqua  v. 

North,  160  Pa.  303  57,  61 

Negley  v.  Lindsay,  67  Pa.  225  69,  253 
Newlin's  Estate,  209  Pa.  456.. 

398  Note 

Nice's  Appeal,  54  Pa.  200  130 

Nicholas    v.    Machine    Co.,    7 

North.  137  80 

O'Donnell    v.    Vandersaal,    213 
Pa.  551  103 


Page. 
Ownes  v.  Wehrle,  14  Pa.  Super. 
536   243 

Page  v.  Carr,  232  Pa.  371 114 

Parish  v.  Koens,  1  Pars.  78  .  59, 245 

Park  v.  Neely,  90  Pa.  52 67 

Patterson  v.  Judge,  17  W.  N.  C 

127   131 

Paxon's  Estate,  221  Pa.  98  .  195, 196 
Pease  v.  Hoag,  11  Phila.  549  ..  113 
Pedrick  v.  Searle,  5  S.  &  R.  236  31 
Penn  v.  Preston,  2  Rawle  14  . .  70 
Pennsylvania  Co.  v.  Singheiser, 

235  Pa.  24  155 

Peters  v.  Holmes,  45  Pa.  Super. 

278   242 

Phila.  Trust  Co.  v.  Roberts,  14 

W.  N.  C.  123   245 

Phipps  v.  Jones,  20  Pa.  263  ...     48 
Pittsburg    R.    R.    Co.    v.    Alle- 
gheny, 63  Pa.  127  44 

Porter  v.  Lazear,  109  U.  S.  84. .  186 
Powell's  Appeal,  98  Pa.  403  ...  166 
Powell  v.  Blair,  133  Pa.  550  .  .  112 
Powers  v.  Black,  159  Pa.  153..  244 
Prouty  v.  Marshall,  225  Pa.  574  163 
Pyles  v.  Brown,  189  Pa.  164  . .   162 

Randall  v.  Dunlap,  218  Pa.  210 

201,   398   Note 

Reagle  v.  Reagle,  179  Pa.  89  .  . .  41 
Reck  v.  Clapp,  1  Penny.  344  ...   163 

Reed  v.  Ward,  22  Pa.  144 51 

Reel  v.  Elder,  62  Pa.  308 185 

Reighard's  Estate,  192  Pa.  108  24 
Rhodes'  Estate,  232  Pa.  492  281  Note 
Richardson's  Estate,  132  Pa.  292  185 
Roeser  v.  German  Nat.  B.  &  L. 

Ass'n,  32  Pa.  Super.  100 119 

Ruchizsky  v.  DeHaven,  97  Pa. 
202    39 

Safe  Deposit  Co.  v.  Linton,  213 
Pa.  105   103 

Salter  v.  Reed,  15  Pa.  260 159 

Samuels  v.  Luckenbach,  205  Pa. 
428    244 

Sankey  v.  Hawley,  118  Pa.  30.   103 


Table  of  Cases  Cited. 


403 


Page. 
Schall  v.  Williams  Valley  R.  R. 

Co.,  35  Pa.  191   33 

Schell  v.  Stein,  76  Pa.  398 162 

Schoch's  Appeal,  33  Pa.  351  ...  183 

Schrach  v.  Zubler,  34  Pa.  38  . .  31 

Schurr  v.  Warnick,  11  D.  R.  1.  243 

Scott  v.  Crosdale,  2  Dallas  127  186 
Scott  v.  Gallagher,  14  S.  &  R. 

333   32 

Seabury  v.   Insurance  Co.,  205 

Pa.  234  243 

Sears   v.   Scranton  Trust   Co., 

228   Pa.   126    81 

Shaw  v.  Boyd,  5  S.  &  R.  309-  •  39 

Shitz  v.  Diffenbach,  3  Pa.  233. .  115 
Shoemaker's  Appeal,  39  Pa.  C. 

C.  24  195 

Shrack  v.  Schriner,  100  Pa.  451  134 
Simon's   Estate,  20  Pa.   Super. 

450   42 

Simpson  v.  Kerkeslager,  41  Pa. 

Super.  347   246 

Singer's  Estate,  233  Pa.  55.  .184, 186 
Singer  v.  Solomon,  56  Leg.  Int. 

315,  8  Pa.  D.  R.  402 58,61 

Smith  v.  Beales,  33  Pa.  Super. 

570   194 

Smith    v.     Danielson,     45     Pa. 

Super.  136  71  Note 

Smith  v.  Markland,  223  Pa.  605  163 
Srolovitz   v.    Margulis,    35    Pa. 

Super.  252   24 

Stamets  v.  Denniston,   193   Pa. 

548   245 

Stephens  v.  Leach,  19  Pa.  262  31,  32 
Stewart  v.  Peterson  Exec'rs,  63 

Pa.  230  209 

Stiles'  Appeal,  95  Pa.  122 118 

Stinson's  Estate,  228  Pa.  480  . .  195 

Stinson's  Estate,  232  Pa.  218  . .  196 
Stock  v.  German  Press  Co.,  230 

Pa.  127  130 

Stone  v.  Caster,  48  Pa.  Super. 

236   24 

Stoner's  Appeal,  20  W.   N.  C. 

375   135 

Stover  v.  Stover,  180  Pa.  425  . .  48 

Stroud  v.  Prager,  130  Pa.  401. .  35 


Page. 
Stuckey  v.  Keefe,  26  Pa.  397  . .  21 
Sulzner  v.  Cappeau  Lemly,  etc., 

Co.,  234  Pa.  162   40 

Susquehanna  Coal  Co.  v.  Quirk, 

61  Pa.  339   166 

Sweigart  v.  Frey,  8  S.  &  R.  299    88 

Taylor's  Estate,  230  Pa.  346  . .  195 

Taylor  v.  Foltz,  24  Pa.  Super.  1  243 

Thomas  v.  Harris,  43  Pa.  231.  186 

Tiernan  v.  Roland,  15  Pa.  440. .  254 

Tupp  v.  Bishop,  56  Pa.  424  ....  55 
Turner    v.    Flennikin,    164    Pa. 

469    134 

Van  Steuben  v.  Central  R.  R. 

Co.,  178  Pa.  367   45 

Wallace  v.  Harmstead,  44  Pa. 

492   151 

Walsh  v.  Kelly,  34  Pa.  84 186 

Waslee  v.  Rosmann,  231  Pa.  219  70 
Warne     v.     Johnson,     48     Pa. 

Super.  98   242 

Waterhouse  v.  Waterhouse,  206 

Pa.  433   184, 186 

Watson  v.  Murhead,  57  Pa.  161  247 
Weidner  v.  Foster,  2  P.  &  W. 

23    149 

Weller  v.  Weller,  213  Pa.  265. .  183 
Wells  v.  Bunnell,  160  Pa.  460  . .  184 
Wentz  v.  DeHaven,  1   S.  &  R. 

312   132 

West  Hickory  Ass'n  v.  Reed,  80 

Pa.  38   48 

Whitehead  v.  Carr,  5  Watts  369  74 
Whittaker  v.  Williams,  7  Leg. 

&  Ins.  Rep.  14  253 

'  ,'ikoff's  Appeal,  15  Pa.  281  . . .  195 
Wilkinson   v.   McCullough,   196 

Pa.  205   243 

Winn    v.    Southwark    Bldg.    & 

Loan  Ass'n,  20  D.  R.  625 120 

Wineland's  Appeal,  118  Pa.  37  195 
Wingate  v.  Mechanics'  Bank,  10 

Pa.  108  246 

Wireman's  Estate,  43  W.  N.  C. 

334   244 


404 


Conveyancing  in  Pennsylvania. 


Page.  Page. 

Wolf  v.  Wilson,  28  Pa.  Super.  Woods  v.  Heron,  229  Pa.  625  .  242 

511   246 

Woods  v.  Farmee,  7  Watts  382  Zane  v.  Kennedy,  73  Pa.  182  ..  11 1 

214,  253 


TABLE  OF  STATUTES  CITED 

Page. 
1705. 

1  Sm.  L.  33,  Wills 193 

Jan.     12,  Sm.  L.  59,  Mortgages 102 

1715. 

May  28,  1  Sm.  L.  94,  Recording  158, 159 

May  28,  1  Sm.  L.  94,  Sec.  3,  Acknowledgment  and  Probate 88 

May  28,  1  Sm.  L.  94,  Sec.  4,  Acknowledgment 89 

May   28,  1  Sm.  L.  94,  Sec.  5,  Probate  of  Deeds 91 

May   28,  1  Sm.  L.  94,  Sec.  8,  Recording 165 

1770. 
Feb.   24,  1  Sm.  L.  307,  Sees.  1-3,  Acknowledgment 88 

1772. 

Mar.  21,  1  Sm.  L,.  389,  Sec.  1,  Frauds 51 

Mar.  21,  1  Sm.  L.  390,  Sees.  2,  3,  Judgments  208 

1775. 

Mar.  18,  1  Sm.  L.  422,  Recording 158, 165 

Mar.  18,  1  Sm.  L.  422,  Sec.  4,  Probate  of  Deeds 88,  91 

1785. 

Mar.  26,  2  Sm.  L.  300,  Sec.  2,  Limitations 30 

April  8,  2  Sm.  L,.  317,  Sec.  2,  Acknowledgment  and  Probate  . .  88 

1791. 

Feb.   28,  3  Sm.  L.  4,  Aliens 37 

April  13,  3  Sm.  L.  30,  Sec.  10,  Acknowledgment  and  Probate  ...  88 

Sept.  30,  3  Sm.  L.  58,  Sec.  9,  Acknowledgment 88 

1799. 
April  11,  3  Sm.  L,.  390,  Sec.  2,  Acknowledgment 88 

1812. 
Mar.  31,  5  Sm.  L.  395,  Joint  Tenancy 20 

1814. 
Mar.  18,  6  Sm.  L,.  144,  Acknowledgment 88 

1815. 
Mar.  13,  6  Sm.  L.  286,  Sec.  10,  Married  Women 193 

1816. 

Mar.  18,  6  Sm.  L.  357,  Sec.  22,  Acknowledgment 89 

1817. 

Jan.      9,  6  Sm.  L.  395,  Acknowledgment  and  Probate 88 

405 


406  Conveyancing  in  Pennsylvania. 

Page. 

1819. 
Mar.  23,  P.  L.  144,  7  Sm.  L.  190,  Acknowledgment 87 

1820. 
Mar.  28,  7  Sm.  L.  303,  Recording-Mortgage  161 

1822. 
April    2,  7  Sm.  L.  549,  Sec.  1,  Recording 166 

1823. 

Mar.  31,  P.  L.  216,  Sec.  1,  Recording 166 

Mar.  31,  8  Sm.  L.  131,  Sec.  1,  Mortgages 131 

1827. 

Jan.    16,  P.  L.  9,  Sec.  1,  9  Sm.  L.  255,  Acknowledgments,  Con- 
suls    86 

1828. 

April  14,  P.  L.  447,  Sec.  1-3,  Acknowledgment — Commissioner. .  86 

April  15,  P.  L.  490,  Sec.  1,  Recording  166 

1833. 

April   6,  P.  L.  167,  Escheat — Corporations  44 

April   8,  P.  L.  249,  Wills  193, 194.  200,  201 

April   8,  P.  L.  249,  Intestates 184 

April   8,  P.  L.  315,  Intestates 171, 181 

1840. 

April  13,  P.  L.  303,  Sec.  17,  Acknowledgment,  Allegheny 89 

April  16,  P.  L.  410,  Sec.  7,  Acknowledgment,  Recorder  of  Deeds  90 

1843. 

April  6,  P.  L.  175,  Sec.  1,  Acknowledgment,  Commissioner 86 

1846. 
Mar.  14,  P.  L.  124,  Sec.  1,  Recording  164, 165,  166, 167 

1847. 
Mar.    9,  P.  L.  278,  Sec.  I,  Recording 166 

1848. 

Jan.    27,  P.  L.  16,  Wills 194 

April  n,  P.  L.  536,  Wills  193 

April  11,  P.  L.  536,  Sec.  10,  Curtesy 182 

1849- 

Mar.  14,  P.  L.  164,  Trustees'  Sales  43 

April    S,  P.  L.  344,  Sec.  2,  Recording  164 

April   9,  P.  L.  525,  Sec.  14,  Recording  164, 165 

April  10,  P.  L.  573,  Sec.  18,  brokers 241 

April  10,  P.  L.  619,  Sec.  8,  Acknowledgment — Judge,  Justice  ...  87 


Table;  of  Statutes  Cited.  407 

Page. 

1850. 

April   2,  P.  L.  312,  Sec.  2,  Acknowledgment — Northern  Liberties  88 

April  15,  P.  L.  472,  Brokers 241 

April  22,  P.  L.  553,  Sec.  20,  Curtesy 182 

April  25,  P.  L.  569,  Sec.  33,  Recording  166 

April  25,  P.  L.  569,  Sec.  42,  Acknowledgment  87 

April  26,  P.  L.  581,  Sec.  24,  Recording  165 

1851. 

Mar.  15,  P.  L.  163,  Sec.  30,  Acknowledgment — Carbondale 89 

1854. 

April  26,  P.  L.  501,  Sec.  1,  Recording 166 

May     6,  P.  L.  603,  Sec.  1,  Recording  164,  167 

Dec.    14,  P.  L.  ( 1855)  724,  Sec.  1,  Recording 165 

Dec.    14,  P.  L.  (1855)  724,  Sees.  1-3,  Acknowledgment 90 

Dec.    14,  P.  L.  ( 1855)  724,  Sec.  3,  Recording 166 

1855. 

April  26,  P.  L.  329,  Sec.  14,  Escheat,  Corporations  188 

April  26,  P.  L.  329,  Sec.  4,  Wills 195 

April  26,  P.  L.  329,  Wills 196 

April  26,  P.  L.  329,  Sec.  1 1,  Wills,  Witnesses 81 

April  27,  P.  L.  368,  Sec.  2,  Intestates 175 

April  27,  P.  L.  368,  Sec.  3,  Illegitimates 169 

April  27,  P.  L.  368,  Sec.  7,  Ground  Rents 156 

April  27,  P.  L.  368,  Sec.  8,  Leasehold  Mortgage 129 

May     4,  P.  L.  430,  Sec.  2,  Married  Women,  Feme  Sole  Traders  41 

May     4,  P.  L.  430,  Curtesy  182, 183 

May     4,  P.  L.  430,  Wills 199 

1856. 

April  21,  P.  L.  484,  Sees.  1-3,  Acknowledgment — Foreign  Com- 
missioner   87 

April  22,  P.  L.  532,  Sec.  1,  Limitations 30 

1857. 

April   8,  P.  L.  175,  Ground  Rent — Costs 157 

May  14,  P.  L.  507,  Illegitimates 169 

1859. 

April   2,  P.  L.  353,  Sec.  1,  Acknowledgments  86 

April   6,  P.  L.  383,  Sec.  1,  Acknowledgment  90 

April   6,  P.  L.  384,  Sec.  1,  Escheat 187 

1861. 

May     1,  P.  L.  433.  Aliens  37 

1862. 
Mar.  27,  P.  L.  192,  Acknowledgment  86 


408  Conveyancing  in  Pennsylvania. 

Page. 
1863. 

April    1,  P.  L.  212,  Sec.  I,  Curtesy 182 

April 22,  P.  L.  548,  Sec.  1,  Acknowledgment— Notary  Public  ...  80 

April  22,  P.  L.  572,  Sec.  2,  Acknowledgment — Military  Officers .  89 

July   22,  P.  L.  (1864)  1098,  Sec.  2,  Corporations— Escheat 47 

1864. 

Mar.  31,  P.  L.  171,  Locality  Index  212 

Aug.  10,  P.  L.  962,  Recording  165 

Aug.  10,  P.  L.  962,  Sees.  2,  3,  Acknowledgment— Notary  Public  89 

1865. 

Mar.  14,  P.  L.  320,  Registry  of  Deeds  207 

April  23,  P.  L.  32,  Corporations,  Escheat 47  Note 

1866. 
April  12,  P.  L.  864,  Sec.  1,  Acknowledgment,  Territorial  Officers  90 

April  23,  P.  L.  1034,  Sec.  31,  Acknowledgment— Scranton 89 

May   17,  P.  L.  1085,  Recording 164, 165, 166 

1868. 
April   8,  P.  L.  73,  Sec.  1,  Recording 164 

1869. 
April  20,  P.  L.  77,  Wills  198 

1870. 

Jan.    26,  P.  L.  13,  Sec.  1,  Recording 165 

Feb.   23,  P.  L.  32,  Sec.  1,  Acknowledgment — District  of  Colum- 
bia    90 

Mar.  22,  P.  L.  531,  Sec.  16,  Acknowledgment — Williamsport  ...  89 

Mar.  28,  P.  L.  633,  Sec.  27,  Acknowledgment— Lock  Haven 89 

1874. 

April  18,  P.  L.  61,  Corporations  112 

April  29,  P.  L.  73,  Corporations 48 

1875. 
Mar.  18,  P.  L.  32,  Sec.  2,  Recording  162, 163 

1876. 
April   6,  P.  L.  18,  Sec.  1,  Recording  Assignment  of  Mortgage  . .  137 

April  28,  P.  L.  52,  Acknowledgment — Commissioner 86 

May    13,  P.  L.  158,  Sec.  1,  Acknowledgment— Prothonotary  of 

Supreme  Court  9° 

1877. 
Mar.  23,  P.  L.  29,  Sec.  1,  Acknowledgment,  Commissioner 87 

1878. 

May   22,  P.  L.  83,  Trustees'  Sales 43 

May   25,  P.  L.  151,  Mortgages *30- 

May   25,  P.  L.  152,  Sec.  1,  Married  Women no 


Table  of  Statutes  Cited.  409 

Page. 
1878. 

May  25,  P.  L~.  155,  Sec.  1,  Probate  of  Deeds 92 

June  12,  P.  L.  205,  Deeds  70, 71, 152 

1879. 

April  10,  P.  L.  16,  Bldg.  Ass'n  Mortgages  120 

June  11,  P.  L.  141,  Sec.  I,  Mortgages 132 

1881. 

June     1,  P.  L.  38,  Sec.  1,  Corporations,  Escheat  47 

June     8,  P.  L.  84,  Mortgages 103 

June    9,  P.  L.  89,  Corporations,  Escheat  46 

June  10,  P.  L.  97,  Sec.  1,  Mortgages 131 

1885. 

June  24,  P.  L.  161,  Ground  Rents  150 

June  25,  P.  L.  179,  Corporations,  Escheat 46 

1887. 

April  13,  P.  L.  53,  Adoption 170 

April  28,  P.  L.  76,  77,  Corporation,  Escheat   46 

May    19,  P.  L.  125,  Adoption 170 

May   23,  P.  L.  176,  Corporations,  Escheat 47 

June     6,  P.  L.  352,  Corporations,  Escheat 47 

1889. 

April  17,  P.  L.  35,  Corporations,  Escheat 47 

April  22,  P.  L.  42,  Escheat 188 

May     2,  P.  L.  66,  Escheat  188,  190 

May     9,  P.  L.  182,  Decedent's  Debts;  Sale  of  Land  for 395 

May   21,  P.  L.  257,  Corporation  Mortgages 48, 1 12 

1891. 

April  30,  P.  L.  39,  Escheat 46 

June     1,  P.  L.  159,  Sec.  1,  Acknowledgments,  Government  Of- 
ficials    86 

1893. 

May    19,  P.  L.  108,  Recording 160 

May   24,  P.  L.  127,  Sec.  1,  Recording 166, 207 

June     6,  P.  L.  329,  Recording  165 

June     8,  P.  L.  344,  Sec.  1,  Married  Women 1 10,  193 

June     8,  P.  L.  344,  Sec.  5,  Married  Women 40 

June     8,  P.  L.  391,  Sec.  1,  Escheat 46 

1895. 

June  24,  P.  L.  238,  Corporations,  Escheat 47 

June  24,  P.  L.  264,  Sec.  1,  Escheat 189 

June  24,  P.  L.  219,  Judgments,  Superior  Court 209 


410  Conveyancing  in  Pennsylvania. 

Page. 
1897. 

May   25,  P.  L.  83,  Sec.  1,  Recording  165 

June     8,  P.  L.  136,  Corporations,  Escheats 48  Note 

June   15,  P.  L.  164,  Escheat 44 

June  22,  P.  L.  181,  Mortgages *3i 

July     9,  P.  L.  212,  Married  Women,  Mortgage,  Deed no 

1899. 

April  28,  P.  L.  123,  Recording  165 

1901 

April   4,  P.  L.  67,  Acknowledgment,  Married  Women 84 

April   4,  P.  L.  70,  Notaries  Public 85, 91 

April  19,  P.  L.  86,  Corporations,  Escheat 46 

May     8,  P.  L.  141.  Sec.  i,  Liens 135 

May    n,  P.  L.  171,  Sec.  1,  Acknowledgment — Corporation 83 

May   21,  P.  L.  271,  Acknowledgments  in  Foreign  Parts  of  U.  S.  89  Note 

May   24,  P.  L.  300,  Acknowledgment— U.  S.  Commissioner 86 

May   31,  P.  L.  352,  Recording  Deeds 30,  33 

June     4,  P-  L-  364,  Liens 213 

June     4,  P.  L.  404,  Sec.  10,  Recording 164 

June     4,  P.  L.  425,  Acknowledgment no 

June     4,  P.  L.  431,  Mechanics'  Liens 212 

June     4,  P.  L.  431,  Sec.  13,  Mechanics'  Liens 114 

June     7,  P.  L.  534,  Sec.  i,  Brokers 241 

June  14,  P.  L.  562,  Decedents'  Debts 211 

June  25,  P.  L.  599,  Corporation  Mortgages 112 

July    10,  P.  L.  639,  Illegitimates  170 

July    11,  P.  L.  663,  Sec.  1,  Sheriff's  Deeds 254 

1903. 

Feb.     5,  P.  L.  4,  Corporations,  Escheats 48  Note 

Mar.  24,  P.  L.  50,  Notary  Public 85 

Mar.  26,  P.  L.  70,  Illegitimates 170 

April  28,  P.  L.  327,  Mortgages 109 

1905. 

April  14,  P.  L.  161,  Sec.  1,  Brokers 241 

April  22,  P.  L.  265,  Sec.  1,  Sheriff's  Deeds 394 

April  22,  P.  L.  265,  Sees.  4.  5,  6,  Recording 166 

April  22,  P.  L.  297,  Adoption 170 

1907. 

May     2,  P.  L.  159.  Recording 164 

May   23,  P.  L.  223,  Recording 165 

May   28,  P.  L.  266,  Corporations,  Escheat 46 

May   28,  P.  L.  290,  Weak-Minded  Persons  38 

1909. 

April    1,  P.  L.  79,  Wills 202 

April    1,  P.  L.  87,  Intestates W,  199 


Table  of  Statutes  Cited.  41 1 

Page. 

April    1,  P.  L.  91,  Deeds 68,  74,  76 

April    1,  P.  L.  93,  Sec.  8,  Deeds 75,  85 

April  23,  P.  L.  137,  Mortgages 103 

April  23,  P.  L.  156,  Acknowledgment  90 

April  27,  P.  L.  173,  Corporations,  Escheat 46 

April  29,  P.  L.  289,  Mortgages 104 

May     3,  P.  L.  386,  Sec.  1,  Decedent's  Debts 211 

1911. 

Mar.  31,  (U.  S.  Revised  Statutes)  Chapter  231,  Judicial  Code  ...  211 

April  20,  P.  L.  68,  Corporations,  Escheat 46 

April  21,  P.  L.  79,  Recording 164 

April  21,  P.  L.  79,  Wills 199,  200 

May    11,  P.  L.  281,  Sec.  1,  Escheat,  Corporations 188 

May    11,  P.  L.  286,  Sec.  4,  Escheat,  Corporations 189, 190 

June     1,  P.  L.  539,  Adoption 170 

June     3,  P.  L.  631,  Deeds,  Married  Women 41 

June     7,  P.  L.  702,  Wills 196 

June     8,  P.,  L.  710,  Corporations 45 

June     8,  P.  L.  717,  Mortgages 131 

June    9,  P.  L.  724,  Sale  of  Land  for  Decedent's  Debts  . . .  .395,  395  Note 

June  10,  P.  L.  874,  Sec.  1,  Trustees  397  Note 

June  23,  P.  L.  1 1 15,  Corporations,  Escheat 46 


INDEX 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

ABSTRACT  OF  TITLE  190 

Form   of    190 

ACKNOWLEDGMENT 

By   administrator,   form    209 

By  agent  of  agreement  of  sale  47 

By  executor,  form    209 

By  individual,  form   208 

By   trustee,   form    209 

By  virtue  of  power  of  attorney 210 

By  whom  may  be  taken  70 

ambassadors    

charges  d'  affaires  

commissioners  appointed  in  other  states  by  governor  of  Penn- 
sylvania      

commissioners  in  foreign  countries   

commissioners  in  foreign  countries  appointed  by  governor  of 

Penna -. 

commissioners  of  United  States   

consuls    

judges  of  District  Court  of  U.  S " 

judges  of  Supreme  Court  of  Pennsylvania  

judges  of  Supreme  Court  of  U.  S 

judges  or  justices  of  common  pleas  court  of  any  state  or  ter- 
ritory of  U.  S. 

judges  or  justices  of  any  court  of  record  of  any  state  or 

territory  of  U.  S " 

judges  or  justices  of  Superior  Court  of  any  state  or  terri- 
tory of  U.  S 

judges  or  justices  of  Supreme  Court  of  any  state  or  terri- 
tory of  U.  S 

judges  or  justices  of  probate  court  of  any  state  or  terri- 
tory of  U.  S 

justices  of  common  pleas  court  of  Pennsylvania 

justices  of  the  peace   

mayor,  etc.,  of  Allegheny  

mayor,  etc.,  of  Carbondale  

mayor,  etc.,  of  Lock  Haven  

mayor,  etc.,  of  Pittsburgh  

mayor,  etc.,  of  Scranton  

mayor,  etc.,  of  Williamsport  

413 


414  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 
ACKNOWLEDGMENT— Continued. 

mayor  of  Northern  Liberties 

mayor  or  chief  magistrate  of  foreign  cities  or  towns  70 

major  or  officer  of  higher  rank  in  military  service  of  U.  S. 

mayor  or  recorder  of  city  of  Philadelphia  

ministers  plenipotentiaries    

notaries  public  of  any  state  or  territory  of  the  U.  S 

notaries  public  in  Pennsylvania  (71)    

ameers  or  magistrate  of  other  state  with  power  in  own  state 

person  exercising  public  ministerial  

prothonotary  of  Supreme  Court  of  United  States 

recorder  of  deeds   

vice  consuls - 

Clause  in  deed  $6(c) 

Date   of 69(0) 

Defective,  cured  by  acts  of  legislature   69 

For  bank  or  trust  company  should  certify  that  certifying  notary 

is  not  director,  etc 69  (g) 

Form  of,  to  indenture  69 

How   made    °7 

Meaning  of   66 

Name  of  grantor  69(c) 

Necessary  to  record  agreement  of  sale  47 

Necessity  for    66 

Notary  must  append  date  of  expiration  of  commission 69(g) 

Not  necessary  to  agreement  of  sale  47 

Of  agreement  of  sale    44. 47 

Of    corporation    2I1 

Of  deeds  by  attorney-in-fact   ^7 

Of  deeds  by  corporation  by  authorized  officer  67 

Of  deeds  must  be  by  grantor  in  person  67 

Of  deeds  necessary  before  recording 67 

Of  deeds  by  trustee  67 

Office  of  officer  69(e) 

Seal  of  executing  officer  in  acknowledgment  69(f) 

Separate,   by   married   women   no   longer   necessary   in    Penn- 
sylvania           68 

but  may  be  in  other  states   68 

Signature  of  officer  69(0?) 

Venue    69(6) 

What  certificate  of  should  contain 69 

ACTUAL   POSSESSION 6 

ADOPTION— See  Descent. 

Does  not  revoke  will   J68 

Of  children,  effect  of  132(c) 

ADMINISTRATOR, 

Form  of  acknowledgment  by   209 


Index.  415 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

ADMINISTRATOR— Continued. 

Form  of  deed  for  land  sold  at  public  sale  by  order  of  court 232 

Form  of  recital  of  title  by 277 

May   petition    court   for   leave   to   sell   real    estate   if   not   suf- 
ficient realty  to  pay  debts   36 

Real  estate  does  not  pass  to   36 

unless  insufficient  personalty  to  pay  decedent's  debts 36 

Recital  in  deed  of   36 

Searches  against    174 

ADVANCEMENTS    107 

By  decedent    134  sec.  18 

Meaning    of    136 

ADVANCE  MONEY  MORTGAGE— See  Mortgage. 

Definition  of   89 

Mechanics'  Ren  subject  to  89 

ADVERSE  POSSESSION 

Acquired  by,  is  marketable 25 

Acquired  by,  is  perfect  and  good  22 

Against  life  estate    24 

Against  whom  acquired   20 

As  a  statute  of  limitations   13 

Clandestine  re-entry  will  not  prevent  title  by 21 

Definition  of  title  acquired  by    12 

Form  of  claim  of  title  by 25 

Form  of  recital  of  title  by  272 

How   averted    21 

May  be  acquired  by  commonwealth  2>7 

Must  be  actual  15 

Must  be  continuous   16 

Must  be  hostile   19 

Must  be  recorded  if  owner  remove  23 

Must  be  visible  and  notorious  18 

Nature  of  title  acquired   22 

Origin  of  title  by   13 

Tacking  interests   in    17 

Title  by,  cannot  be  acquired 

against   commonwealth    20,  37 

against  landlord  by  tenant  20 

against  vendor  by  vendee  20 

AFFIDAVITS, 

General  form 212 

Probate  of  deed  not  acknowledged,  form  213 

To  probate  of  deed  not   acknowledged   where  witness  is   de- 
ceased or  absent,  form   214 

To  remove  objections  from  settlement  certificate,  form  215 

AFFINITY  (see  Descent)    132 

AFTER-BORN  DESCENDANTS— See  Descent. 


416  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

AGENTS  AND  BROKERS, 

Authority  of  married  vendor  to  be  signed  by  both 46 

Authority  to  acknowledged  agreement  of  sale  by  letter  of  at- 
torney      47 

Authority  to  act   I9° 

Authority  to  sell  real  estate  should  be  written 46, 196 

Conveyancer  and  real  estate  broker  compared 190 

Definition  of  real  estate  broker  190 

Effect  of  not  obtaining  a  license J92 

Must  be  employed  before  he  can  recover  commissions 194 

Must  be  licensed    I9I 

Must  exercise  due  diligence  and  competent  skill 198 

Must  not  be  disloyal   x94 

Must  not  represent  both  parties   . ." 194 

Ratification  of  act  of  by  principal  46 

Relation  to  client  is  confidential  195. 

Right  of  principal  to  cancel  agency 197 

Signature  by,  in  agreement  of  sale, 46, 196 

When  entitled  to  commissions  l93 

When  not  entitled  to  commissions   194 

When   personally   liable    :98 

Who  is  x90 

Written  authority  to  sell  real  estate  46, 196 

AGREEMENT 

Of  exchange  of  real  estate,  form 218 

To  extend  mortgage   2I9 

AGREEMENTS 

To  secure  payment  of  money  must  contain  certificate  of  payee's 

residence  if  intended  to  be  recorded   79 

AGREEMENT  OF  SALE 

Acknowledgment  of   47 

Acknowledgment  of,  by  agent  47 

Acknowledgment  of,  not  necessary  47 

Apportionment   clause    45  Wi  50-3 

effect  of,  on  current  taxes 45  W>  5°-3 

of  rent  to  date  of  settlement  by  custom  in  Philadelphia,  . . 

45(/»)»  50-3 

Authority  of  agent  of  married  vendor  should  be  signed  by  both  46 

Authority  of  agent  should  be  written 46, 196 

By  builder,  form  2I7 

Consideration  should  be  shown  in  44 

Definition   42 

Description   in    45 

by  metes  and  bounds  if  no  street  and  number 45 

should  identify  property  45; 

street  and  number  sufficient  in  city 45 

Description  of  property  should  be  shown  in 44 


Index.  417 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 
AGREEMENT  OF  SALE— Continued. 

Effect  of  death  of  parties   45(0 

clause  binding  heirs,  executors,  etc 45(0 

of  recording   47 

Execution   of    46 

Extinction  of    49 

Fire  insurance  clause  in  5°~7 

form  of,  if  included  in  sale 45 

Fixtures — 

attached,  pass  with   freehold    5°~5 

clause    in    45 

intention  governs,  what  are  50-5 

should  be  ascertained  by  examination  of  property 50-5 

should  be  specified  to  prevent  dispute 45.  50-5 

trade  fixtures,  presumptions    5°-5 

Form   44. 216 

Form  of  consideration  clause  in 45 

if  clear  and  incumbrance  to  be  created 45 

if  under  and  subject  to  existing  mortgage 45 

Husband  of  vendor  should  sign    46 

Interest  of  parties  should  be  shown  in 44 

Introduction   of    45 

Joinder  by  husband  in,  bars  curtesy  141  (a) 

Kind  of  title  agreed  on 45  (0 

clause  as  to,  in 45  (0 

exposure  to  hazard  of  suit  45  (0 

good  and  marketable   •. 45(0 

title    insurance    clause    in    45  (0 

Legal  effect  of   48 

May  be  recorded  47 

Meaning  of  various  parts    45 

Merger  with  deed   49(a) 

Municipal  improvements  made  between  sale  and  settlement  to 

be  provided  for 50-4 

Must  be  in  writing   42, 43 

Need  not  be  under  seal  44 

Need  only  be  signed  by  vendor  44 

No  particular  form  necessary   44 

Possession — 

assignment  of  existing  lease  does  not  give 45 (g) 

by  vendee  calls  for  lease  when   50-2 

clause    in    45(g).  50-1 

meaning  of    45 (g) 

subject  to  existing  lease  50-2 

Principal's  ratification  of  act  of  agent 46 

Ratification  by  principal  of  unauthorized  act 40 

Recording   of    47 


418  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 
AGREEMENT  OF  SALE— Continued. 

Recission  of,  by  parties  49(&) 

Signature  by  agent    46 

Signature  of  parties  in    46 

Signature  of  wife  or  husband  of  vendor  4& 

Statute  of  frauds  as  to  43 

Suggestions  in  drawing   SO 

Terms  and  conditions  in  45 

consideration    45 

Terms  of  sale  should  be  shown  in  44 

Vendee  may  sign   44 

Vendor's  signature  to,  sufficient  44 

Vendor's  wife  or  husband  should  sign  44 

What  must  be  written    44 

Wife  of  vendor  should  sign 46 

AIR 

If  convenient  only  does  not  pass  as  appurtenant  54(A) 

ALIENS 

Definition  of  2% 

Escheat  of  lands  held  by 148 

May  take  title  to  land  by  descent 28 

Title  to  land  by  purchase  limited   28 

ALIENATION, 

Definition  of   26 

ALLEYS, 

when  appurtenant   54(A) 

AMBASSADORS, 

Power  to  take  acknowledgments,  etc 70 

ANTE-NUPTIAL  agreement  bars  dower 145(e) 

APPELLATE  COURT, 

Judgments,  necessity  to  search  for 179 

APPLICATION 

For  title  insurance  201 

APPORTIONMENT 

Clause  of,  in  agreement  of  sale   45 (A) 

Custom  in  Philadelphia  as  to,  rent  and  taxes  45  (A) 

Necessity  for,  in  agreement  of  sale 45  (A) 

Of  ground  rents   I0Q 

Of  interest  on  incumbrance  in  agreement  of  sale 45 (A) 

Of  rent  by  custom  in  Philadelphia  45(A) 

Of  taxes  in  agreement  of  sale  45  (A) 

Of  taxes  in  Philadelphia  by  custom 45  (A) 

Of  water  rent  in  agreement  of  sale 45 (A) 

APPURTENANT 

Clause  in  deed   (See  Deeds)    54(A) 

Legal   maxim   as   to    54(A) 

What    is    54  ( A) 

What  will  pass  as,  under  Act  1909  58 


Index.  419 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 
ARREARAGES 

In    ground    rent    115 

ASSIGNEE, 

Generally  no  power  to  convey  real  estate  without  specific  au- 
thority            36 

Of  mortgagee  cannot  sue  grantee  of  land  subject  to  mortgage     54(g) 

May  sue  original  mortgagor  on  bond  when  54(g) 

ASSIGNMENT— See"  Deeds. 

For  benefit  of  creditors,  recording  of  130 

Of  ground  rent,  form    220 

Of  interest  in  land  to  be  in  writing 43 

Of  lease,  form   221 

Of  Mortgage,  definition  of  (See  Mortgages)    101 

Effect    of    102 

Form  of   101 

married  woman  may  execute,  without  joinder  of  husband        82 

noted  on  record  of  the  mortgage  176 

notification  of  the  mortgagor    102 

rights  of  assignee   102 

recording  of 101, 130 

search  for    187 

Of  mortgage,  form  223 

Of  right  to  purchase  money  mortgage,  form   222 

To  secure  payment  of  money  must  contain  address  of  assignee 

or  agent  to  be  recorded  79 

ASSOCIATIONS— See  Unincorporated  Associations. 

Unincorporated  40 

ASSUMPSIT, 

Remedy  of,  in  ground  rent  1 14 

ATTESTATION— See  Deeds. 

Generally  not  necessary  to  deeds  62 

Meaning  of   62 

Of  deed 62 

Required  in  conveyance  to  charitable  institution 62 

Required  in  conveyance  to  church   62 

Required  in  other  states  62 

ATTORNEY  IN  FACT, 

Form  of  deed  by    230 

Form  of  recital  of  title  by  276 

AUTHORITY 

Of  agent  to  act   196 

BANKRUPTCY— See  Forfeiture. 

Of  husband  does  not  bar  dower  146 

Recording  of  certificate  of   130 

Searches  for   174 

BEQUEATH, 

Meaning  of   155 


420  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

BIRTH  OF  CHILD 

Revokes  will  pro  tanto   168 

BLOOD, 

Half  136 

Whole    136 

BOND  AND  WARRANT, 

Accompanying   mortgage    73 

Avoidance  of  personal  liability  through  straw  man  81 

Compared  with  mortgage  81 

Conditions    of    80 

same  as  those  in  mortgage  (q.  v.)    80 

Confession  of  judgment  for  breach  of  conditions  80 

Consist  of  two  separate  instruments  , 80 

Decree  of  court  after  evidence  of  refusal  of  tender 81 

Decree  of  court  may  be  indexed  81 

Definition    of 73 

Entry  of  judgment  on  warrant  of  attorney  81 

formality  of  entry  of  suit  waived 81 

advantage  in  obtaining  immediate  general  judgment  by 81 

remedy  exclusive  of  mortgage  81 

Form   of    80 

Mortgagor  may  avoid  personal  liability  after  parting  with  title 

by  tender  to  mortgagee  or  assignee 81 

Obligee      80 

Obligor 80 

Personal  liability  of  mortgagor  continues  after  parting  with  title  81 

Petition  on  refusal  of  tender  by  mortgagee  81 

Proceedings   on    81 

Usually  double  amount  of  principal  sum  by  custom 80 

BONDS, 

Mortgage  to  secure,  by  corporation 87 

BRIEF  OF  TITLE  190 

Form  of   190 

BROKERS— See  Agents  and  Brokers. 

BUILDER, 

Agreement  of  sale  by 217 

BUILDING  ASSOCIATIONS  93 

Capitalization  of    93 

Committee  on  loans   93 

Dues   93 

Formation  of    93 

Forms,  mortgage  and  bond    94 

History  of   93 

Maturity  of  stock  of    93, 94 

Mortgages  (see  Mortgages)    93 

Officers  of    93 

Payment  of  mortgage  before  maturity  97 


Index  421 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

BUILDING  ASSOCIATIONS— Continued. 

Plan  of  93 

Shares  of  93 

Premium  93 

Time  within  which  principal  of  mortgage  is  payable 94 

CANCELLATION  OF  WILLS  167 

CAPACITY 

To  make  will  (see  Wills)   159 

To  mortgage  (see  Mortgages)   82, 83 

CERTIFICATE 

Of  no  set  off 103 

form  of  103 

Of  no  set-off,  form  224 

Of  no  set-off  in  assignment  of  mortgage  102 

Of  residence  of  mortgagee,  assignee  or  payee  79 

Settlement    202 

CESTUI  QUE  TRUST, 

Definition  of 10 

CHARGES  D'AFFAIRES, 

Power  to  take  acknowledgments,  etc.,  70 

CHARITIES, 

Attestation   in   conveyance   to,    62 

Devise  or  bequest  to,  must  be  witnessed 162 

Devise  or  bequest  to,  must  be  made  one  calendar  month  before 

death  of  testator   162 

Escheat  of  land  held  by  ?49 

CHILD,  CHILDREN— See  Descent. 
Adopted — See  Descent. 

Form  of  codicil  for  child  born  after  date  of  will 287 

CHURCHES    40 

Attestation  in  conveyance  to  62 

CODICIL, 

Definition  of   155 

Form  of  164 

To  will   164 

COLLATERAL  HEIRS  (see  Descent  to)   133 

COMMISSIONERS, 

Powers  of,  appointed  by  governor  for  other  states  to  take  ac- 
knowledgments, etc 70 

Powers  of,  appointed  for  foreign  states  to  take  acknowledgments 

etc 70 

Powers  of,  appointed  by  United  States  70 

Powers  of,  in  chancery  in  foreign  countries  to  take  acknowl- 
edgments,   etc 70 

COMMISSIONS, 

When  brokers  entitled  to  193 

When  brokers  not  entitled  to  194 


422  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

COMMITTEE 

To  administer  estate  of  insane  person  29 

COMMON  PLEAS  COURT, 

Search  for  judgments  of l°° 

COMMONWEALTH, 

Can  gain  title  by  adverse  possession 37 

Cannot  lose  title  by  adverse  possession  37 

Definition  of  37 

Escheat  to,  for  want  of  heirs I34»  sec  14 

Escheat  not  complete  until  proceedings  commenced  by 152 

May  delegate  right  to  take  land  for  public  purposes 37 

May  take  land  for  public  purposes 37 

Obligation  to  compensate  for  land  taken  by  37 

Powers  to  purchase,  hold,  sell,  etc 37 

Statute  of  limitations  does  not  run  against  37 

CONCLUSION 

In  deed  (see  Deeds)    56 

CONFESSION  OF  JUDGMENT— See  Bond  and  Warrant. 

CONFIRMATION, 

Form  of  deed  of   244 

CONSANGUINITY   (see  Descent)    132 

CONSIDERATION 

Clause  in  agreement  of  sale  45 

In  deeds— See  Deeds. 

Should  be  set  out  in  agreement  of  sale 44 

CONSULS, 

Power  of,  to  take  acknowledgments,  etc 7° 

CONTRACTS 

Of  infants  to  acquire,  or  convey  real  estate  voidable 32 

Of  infants   for  necessaries  valid    32 

Of  infants  presumed  to  be  ratified  by  failure  to  disaffirm 32 

Of  infants  voidable  only   32 

Ratification  of,  by  infants  after  reaching  majority 32 

CONVEYANCE— See  Deeds,  Mortgages. 

By  husband  to  wife  valid  34 

By  wife  to  husband  validated   34 

Deed   of    _ Si 

Deed  by  husband  must  be  joined  in  by  wife 34 

Deed  by  wife  must  be  joined  in  by  husband  34 

In  mortgage    77(b) 

Searches    x74 

When  defeasance  not  annexed  78 

CONVEYANCERS  (see  Agent  and  Brokers)    190 

Old-time   conveyancer    19°.  200 

now  replaced  by  title  companies   200 

and  by  real  estate  broker   190 


Index.  423 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

CONVEYANCING— See  Deeds  and  Mortgages. 

Definition  of   1 

Expenses  and  charges,  who  must  pay  204 

CORONER'S  DEEDS, 

Recording   of    130 

CORPORATIONS, 

Acknowledgment  of  deed  by  67 

Cannot  hold  real  estate  unless  necessary  for  its  business 38 

Commonwealth  must  commence  proceedings  to  escheat  land  im- 
properly held  by   38 

Title  good  in  hands  of  grantee  before  proceedings  against 38 

Conveyance  to,  as  to  words  of  limitation 54(d) -2 

Deeds  of  must  be  under  seal   61 

Escheat  of  land  held  by  151 

Foreign  (see  Foreign  Corporations)    39 

Form  of  acknowledgment  by   211 

Form  of  deed  by  .*.  228 

How  created  prior  to  Constitution  of  1874 38 

General  Corporation  Act  of  1874  38 

classes   under 38 

of  first  class 38 

of  second  class  38 

Land  properly  held  may  be  alienated  as  freely  as  by  individual  38 

power  to  hold  prior  to  Act  of  1874  38 

Mortgage,  sci.  fa.,  form  258 

Mortgage  to  secure  bond  issue 87 

Mortgage  to  trustee  to  secure  bond  issue,  form  259 

Organized  for  profit   38 

Organized  not  for  profit   38 

Power  to  hold,  purchase  and  transfer  real   estate  under  Act 

of   1874   38 

Power  to  hold  real  estate  limited  by  charter  38 

Power  to  mortgage  (see  Mortgages)   39, 86 

Right  to  hold  and  alien  land  dependent  on  statutory  authority..  38 

Title  to  land  improperly  held  defeasible  only  by  commonwealth  38 

COUNTY  COMMISSIONERS'  DEEDS, 

Recording  of    130 

COVENANTS 

Of  warranty    (see  Deeds)    55(b) 

meaning  of    55(b) 

CRIMINAL  COURT, 

Search  for  judgments  of  181 

CURTESY— See  Estates  by  Curtesy. 

DATE 

Of  acknowledgment  may  be  any  time  after  execution 69(a) 

Of  deed  (see  Deeds)   69(a) 


424  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

DEATH, 

Effect  of  party's,  to  contract  45  (0 

How  unacknowledged  deed  may  be  probated  7^ 

Of  grantor  before  acknowledgment  of  deed  7% 

Of  parties  to  agreement  of  sale  45  (0 

Stipulation  to  cover,  in  agreement  of  sale   45(0 

DEBTS, 

Decedent's    search   for    x°3 

DECLARATION  OF  TRUST, 

Form  of   225 

DEED  OF  TRUST 

May  be  recorded   I3° 

Of  corporation  to  secure  bond  issue  form   259 

To  married  woman  may  stipulate  against  curtesy 140 

DEEDS— See   Acknowledgment   of;    Covenant,    Fraud,   Recording, 
Delivery. 

Acknowledgment  of,  necessity  for  66 

by  attorney  in  fact  67 

by   corporation    67 

by  married  women   68 

separate  acknowledgment  by  no  longer  necessary 68 

by    trustee    67 

by  whom  it  may  be  taken   70 

form  of  clause  for  56(c) 

how  made    07 

meaning    60 

necessary  for  purpose  of  recording 67 

not  necessary  to  pass  title  67 

separate,  by  married  women  abolished  in  Pennsylvania    . .         68 

signed  before  officer  authorized  to  take   56 (e) 

what  it  must  contain    69 

Act  of  April   1,  1909   58 

Administrator's  deed  in  partition,  form  240 

Analysis  of   53 

Appurtenance 

clause   in    54(^0 

what  passes  as   54(^) 

necessary  to  full  enjoyment  pass   54(^0 

convenient  things  do  not  pass  without  specific  mention   . .  54 (h) 

what    are    54  W 

to  a  tract  of  land  is  appurtenant  to  every  part 54(^) 

Attestations    62 

Attestation   62 

necessary  in,  to  charity  62 

necessary  in,  to  church 62 

of,  not  requisite,  generally   62 

By  administrator  or  executor  by  order  of  court,  form  232 


Index.  425 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 
DEEDS— Continued. 

By  attorney  in  fact,  form  230 

By  corporation,  form  228 

By  executor  with  power  to  sell,  form 231 

By  heirs  and  corporation  guardian,  form   235 

By  heirs  and  guardian,  form 234 

By  individuals  to  trustees  of  unincorporated  church,  form 237 

By  feme  sole  trader    35 

Conclusion    of    5° 

execution  clause,  form  of  56(a 

use  of  word  interchangeably  56(0 

of  deed  poll  56(0 

Consideration    54(c 

form  of  clause  of 54(c 

amount   of,   immaterial    54(c 

one    dollar    54(c 

not  conclusive  evidence  54(c 

Coroner's,  recording  of  130 

County  commissioners,  recording  of  130 

Covenants  of  warranty   55(b 

clause  of  55  (& 

origin    of    55  ( b 

two  kinds  of  55 (b 

special    (see  Warranty)    55(& 

general  (see  Warranty)    55 (b 

Date  of 54(a 

not  absolutely  essential  54(0 

not  anciently   dated    54(o 

advantage    of    54(0 

prima  facie  proof  of   54(o 

can   be    contradicted    54(o 

contradiction  of   — 54(a 

Dates  from  time  of  execution  when  125 

Deed  of  confirmation,  form  244 

Defeasible — See  Mortgage. 

Definition  of   51 

Distinction  between  poll  and  indenture, 52 

Delivery  in  escrow   64 

Delivery  of    63 

Delivery  of, 

necessary  to  pass  title  63 

presumption  of,  by  possession 63 

in  escrow — See  Escrow. 
Description, 

clause  of,  in  deed   54(*) 

object  to  identify  land    54(^) 

must  be  sufficient  for  surveyor  to  locate  54(^) 


426  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 
DEEDS— Continued. 

may  be  contained  in  other  paper  than  deed  54 (?) 

Destruction  of, 

does  not  revest  title   °5 

Devisee's    recitals    I7° 

Effect   of   destruction    65 

Effect  of  not  recording   124 

Executed  outside  of  state  I25 

Encumbrance, 

clause   54(g) 

position  of  54(g) 

liability  of  grantee  for   54(g) 

grantee's  personal  liability  for,  to  be  in  writing 54(g) 

Execution  of, 

meaning  of    59 

presumption  that  parties  have  read 59 

failure  to  read   59 

necessity  for  signature  59. 60 

necessity  for  seal 59.  61 

necessity  for  attestation   59. 62 

necessity  for  delivery   59. 63 

Form  of 53 

Form  of  probate  of  where  witness  is  deceased  or  absent  (see 

Probate)     214 

Form  of  probate  to  one  not  acknowledged 213 

Form  of  recital  of  title  by  265-266 

Form — short  form  under  Act  of  1909   57 

Granting, 

form  of  clause  of  54(d) 

operative  words  54(d) 

any  words  showing  intention  to  convey  may  be  used 54(d) 

words  of,  under  Act  1909 54(d) 

grant  and  convey,  under  Act  of  1909 54(d) 

Ground  rent  deed,  form  247 

Guardian's  deed  when  sold  by  order  of  court,  form 233 

Habendum   53.  55 

to  have  and  to  hold  clause  in  55  (*) 

purpose    of    55(«) 

explains  premises    55  (0) 

if  repugnant  to  premises  will  be  rejected  55(a) 

Heirs  in, 

a  word  of  limitation   54(d) 

essential  to  pass  fee  at  common  law  54(d) 

fee  to  individual  54(d) 

fee  to  corporation    54(d) 

Act  of  1909  as  to  use  of  word  54(<0 

use  oi  words,  not  necessary  in 


Index.  427 

References  are  to  numbered  paragraphs  and  not  to   pages. 

Paragraph 

DEEDS— Continued. 

agreement  of  sale    54(d)-i 

conveyance  to  corporation    54(d)-2 

where  reference  to  other  instrument  containing   54(d)-3 

deed  in  pursuance  of  order  of  court  54(d)-4 

conveyance  to  trustee  54(d) -5 

Indenture    52 

In  fee  by  individual,  form  226 

Short  form    227 

Inheritance,  words  of,  in   54(d) 

Kinds   of    52 

Joinder  of  husband  in,  bars  curtesy 141  (a) 

Joinder  of  wife  in,  bars  dower  I45(<0 

Master's  deed  in  partition,  form     239 

Meaning  of  execution   59 

Meaning  of  various  parts  of  54 

Names  of  parties  54(&) 

city   of    54(&) 

position    of    54(&) 

Necessity  for  seal   51 

Obtained  by  duress  voidable  33 

Of  easement,   form,    245 

Of  exchange  of  real  estate,  form  246 

Of  gift  to  infant  valid   32 

Of  husband  and  wife  as  tenants  by  entireties,  form  229 

Of  infant 32 

Of  right  of  way,  form  245 

Poll 52 

Premises    53. 54 

Probate  of,  where  grantor  deceased  or  unable  to  appear  72 

Quit  claim  deed,  form  242 

Ratification  of  deed  by  infant  3? 

Receipt, 

form  of  clause  of  5°(&) 

signed  by  grantor  5^(&) 

Recital 

clause    in    54(/ ) 

purpose  of 54(f) 

if  in  conflict  with  operative  part   54(f) 

of  title  by  descent   I38 

form   of    r38 

Recitals  in,  by  feme  sole  trader 35 

Recital  of  one  inheriting  by  decedent 138 

Recording  of  I25 

Short  form   243 

Seal  necessary  in 51 

Sealing 61 


428  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 
DEEDS— Continued. 

Sheriff's  deed  in  common  law  by  partition,  form 241 

Sheriff's  deed,  new  form  236 

Short  form  of,  under  Act  April  1,  1909 58 

advantages  of   58 

Form    of    58 

grant  and  convey  passes  fee  when  58 

appurtenances  that  pass  under  58 

grant  and  convey  imply  covenant  of 58 

warrant  generally  under  58 

warrant  specially  under    $8 

release  and  quit-claim  under  58 

Signing 60 

Time  within  which  must  be  recorded  125 

To  be  recorded  in  separate  book  127 

To  partnership  for  firm  use  to  set  out 41 

Transcribing    of    I27 

Under  and  subject  clause   54(g) 

liability  of  grantee  taking  under  54(g) 

Voluntary  deed  in  partition,  form   238 

What  it  is   51 

DEFEASANCE— See  Mortgages. 

When  not  annexed  to  conveyance  78 

DEFEASIBLE  DEEDS— See  Mortgages. 
DELIVERY 

A  question  of  intention  63 

Possession  of  deed  presumption  of  delivery 63 

Destruction  of  deed  after,  does  not  revest  title 65 

In  escrow   (see  Escrow)    64 

Necessary  to  vest  title  in  grantee  63 

DESCENT. 

Acquisition  of  title  of  infant  by,  valid  32 

Advancements,    definition    of    T-37 

Among   collaterals    135  Synopsis  I 

to  grandchildren  of  brothers  and  sisters  134  sec.  9 

to  children  of  uncles  and  aunts  134  sec.  9 

Among  lineals   T35(0 

Among  next  of  kin, 

to    grandparent   where    children   of    deceased   grandparent 

living   134  sec.  10 

to  issue  of  deceased  grandparent, 

to  children  of  deceased  grandparent  134  sec.  10  (1) 

to  grandchildren  of  deceased  grandparent  134  sec.  10  (2) 

to  descendants  of  deceased  grandparent 

in  same  degree  of  consanguinity  134  sec.  10  (3) 

in  different  degrees   134  sec.  10  (4) 


Index  429 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 
DESCENT— Continued. 

As  to  advances  to  child  of  intestate 

of  amount  equal  to  share  to  preclude  claim 134,  sec.  18,  137 

of  amount  less  than  share  to  be  set-off  against  claim  . . .  134  sec.  18 
As   to  widow's   right  to   realty  in   default  of  known  heirs  or 

kindred    134  sec.  12 

At  common  law   13 l 

By  adopted  children, 

have  full  capacity  to  inherit  132(c) 

By  affinity  or  consanguinity  132 

By  illegitimates    132 (b) 

definition    of 132(b) 

subsequent  marriage  of  parents  in  Pennsylvania  132(b) 

inherits   from   mother    132(b) 

take  mother's  name    132(b) 

By  intestate  laws  of  Pennsylvania 134 

to  widow  and  issue   134.  sec.  1-1 

to  widow  without  issue 134  sec  1-2 

widow's  exemption  under   134  sec.  1-2 

to   husband    134  sec.  1-3 

to  children  where  no  other  descendants  134  sec.  2-1 

to  grandchildren  where  no  other  descendants  134  sec.  2-2 

to  descendants  in  same  degree  of  consanguinity  134  sec.  2-3 

if  decedent  leaves  descendant  in  different  degrees  of  con- 
sanguinity     134  sec.  2-4 

to  children  of  intestate  134  sec.  2  (4)  (a) 

to  grandchildren  of  intestate    134  sec.  2(4)  (b) 

to   issue  of  deceased  child,  grandchild  or  other  dece- 
dent      134  sec.  2  (4)  (c) 

to  father  and  mother,  where  no  widow  or  issue  134  sec.  3 

real  estate  to  them  for  life  with  survivorship  134  sec.  3 

personal  estate  absolutely   134  sec.  3 

By  lineals  and  collaterals    : 133 

who  are  lineals  133 

who  are  collaterals  133 

relationship    133 

civil-law  method  of  computing  relationship  133 

By  natural  heirs  132(a) 

By  representation  amongst  collaterals  after  brother's  and  sister's 

children  not  permitted    134  sec.  8 

Curtesy  (see  Estate  by  Curtesy)   139 

Definition  of   131 

Dower   (see  Dower)    142 

Form  of  recital  of  title  by  269-270 

If  no   widow,  issue,  father  or  mother,  brothers  or   sisters  or 

children  of  deceased  brothers  and  sisters  134  sec.  4  (4) 


430  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 
DESCENT— Continued. 

If  no  widow,  issue,  or  father  or  mother 134  sec.  4 

to  brother  or   sisters  of  whole  blood,  where  no  nephews 

or  nieces    134  sec  4(1) 

to  nephews  or  nieces  of  whole  blood 134  sec.  4  (2) 

to  brothers  and  sisters  of  whole  blood  where  nephews  and 

nieces    134  sec.  4  (3) 

nephews  and  nieces  take  by  representation  134  sec.  4  (3) 

distribution  of  personalty  to   134  sec.  4  (5) 

If  widow  and  no  issue  or  brothers  or  sisters  of  whole  blood  but 

brothers  and  sisters  of  half  blood 134  sec.  6 

If  widow,  but  no  issue,  brothers  or  sisters  or  children  of  de- 
ceased brothers  or  sisters  of  whole  blood 134  sec.  5 

Of    residue    from    sale    of    realty   to   pay   debts    shall    pass    as 

realty   134  sec.  20 

Of  share  of  widow  in  act  to  be  in  lieu  of  dower  134  sec.  17 

Order  of,  under  Pennsylvania  intestate  laws  134 

Per  capita,  meaning  of   T35(2) 

Per  stirpes,  meaning  of  135(2) 

Recital  of  deed  of  one  inheriting  by  138 

Through  intestates,  domiciles  must  have  been  in  commonwealth 

at  time  of  death  134  sec.  22 

Title  acquired  by    12 

To   after-born    descendants    134  sec.  15 

To  blood  of  ancestor  only  when 134  sec  11 

To  collaterals   133 

To  commonwealth  in  default  of  widow,  etc 134  sec  14 

To  descendants  only  who  are  born  in  lawful  wedlock 134  sec.  19 

To  half  blood, 

meaning   of    136 

postponed  to  whole  blood  136 

To  half-blood   136 

To   lineals    133 

To  persons  of  same  degree 

is  exclusive  in  that  degree   134  sec  16 

if  more  than  one  take  real  estate  they  hold  as  tenants  in 

common    134  sec.  16 

To  relations  must  be  claimed  within  seven  years  from  time  of 

intestate's    death    134  sec.  21 

or  if  under  disability  of  infancy  or  coverture  within  seven 

years  after  removal  of  such  disability 134  sec.  21 

To  whole  blood, 

meaning    of    136 

half  blood,  postponed  as  to  real  estate 136 

To  whole-blood   136 

When  next  of  kin  inherit  134  sec.  7 

Where  decedent  married  man  leaving  wife  135  syn.  iii 


Index.  43 l 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

DESCENT— Continued. 

Where  decedent  married  woman  leaving  husband  135  syn.  iv 

Where  decedent  widow  or  widower  leaving  children,  etc.  . . .  135  syn.  ii 

Where  person  dies  unmarried  135  syn.  i 

Where  widow  without  children  dies   135  syn.  i 

Where  widower  without  children  dies  135  syn.  i 

Who  may  inherit  by  I32 

DESCENT  AND  PURCHASE, 

Definition   of  title  by    12 

DESCENDANTS  UNDER  INTESTATE  LAWS— See  Descent. 

DESCRIPTION  OF  PROPERTY, 

In  agreement  of  sale 44 

In  deeds — See  Deeds. 

In    wills    163 

DESERTION  AND  NONSUPPORT 

May  bar  curtesy  141  (c) 

Does  not  bar  dower  1*45 (c) 

DESTRUCTION 
Of  deed  after  delivery   65 

DEVISE, 

Acceptance  of,  in  lieu  of  dower  bars  dower  145(^0 

DEVISEES, 

Definition  of  155 

Recital  of  will  in  deed  by 17° 

DISABILITIES 

No  exception  as  to  conclusiveness  of  probate  of  will  169 

Of    corporations    38, 86 

Of  infants  to  contract  for  other  than  necessaries  32 

Of  infants  to  convey,  etc 32, 83 

Of  lunatics    29, 84 

Of  married  women  at  common  law  34 

Of  married  women  partially  removed  by  statute  34 

Of  trustees  85 

To  mortgage — See  Mortgages. 

DISCHARGE  OF  MORTGAGES— See  Mortgages. 

By  judicial  sale   100 

By  order  of  court 98 

By  payment  97 

By  release 99 

Proceedings  to   satisfy    98 

DISCHARGE  OF  OFFICERS  or  privates  may  be  recorded 130 

DISTRESS, 

Remedy  in  ground  rent   Ill 

DIVORCE, 

A.  V.  M 141  (b) 

bars   curtesy    141  (b) 

bars   dower    I45(&) 


432  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

DIVORCE— Continued. 

A  mensa  et  thoro  M*  (&) 

does  not  bar  curtesy  x4i  (&) 

DOMICILE   OF   INTESTATE    134  sec.  22 

DOWER— See  Descent. 

Acceptance  of  devise  in  lieu  of  dower  bars  I45(<0 

Ante-nuptial   agreement  bars    145(c) 

Bankruptcy  of  husband  does  not  bar  146 

Cannot  be  defeated  by  husband's  fraudulent  mortgage  82 

Common  law  still  exists  during  husband's  life 143 

Desertion  by  wife  does  not  bar 145(c) 

Divorce  A.  V.  M.  bars  I45(&) 

Elopement  and  adultery  bars 145(c) 

Grantee  of  husband's  land  without  joinder  of  wife  takes  sub- 
ject   to    x43 

How  it  may  be  barred x45 

Is  created  by  operation  of  law  3 

In  realty,  life  estates   3 

Its  relation  to  estates  of  freehold  2 

Joinder  in  husband's  deed  bars  145(a) 

Purchaser   at   sheriff's    sale   of   husband's   mortgage   may   take 

clear  of   , 82, 145(g) 

Release   and   agreement  bars    !45  (f) 

Release  of,  may  be  recorded  13°.  145(f) 

Sale  of  realty  to  pay  decedent's  debts  will  bar 145  W 

Share  of  widow  under  intestate  laws  to  be  in  lieu  of  . . .  134  sec.  17,  143 

Sheriff's  sale  on  foreclosure  may  bar 145(g) 

fraudulent  mortgage  by  husband  will  not  bar  145(g) 

Vests  instant  of  marriage   144 

What  it  is   *42 

When  the  right  vests   *44 

DRUNKARDS— See  Lunatics. 

Who    are    30 

DURESS, 

Deeds  made  under,  voidable  33 

Definition  of   33 

Persons   under    33 

Setting  aside  deeds  made  under  33 

EASEMENTS, 

Form  of  deed  of  245 

When  necessary  to  enjoyment  pass  as  appurtenant    54(^0 

EJECTMENT, 

In  lease  to  tenant-vendee  50-2 

Remedy  of,  in  ground  rent   ll3 

To  prevent  statute  from  running  in  adverse  possession 21 

ELOPEMENT  AND  ADULTERY  bars  dower 145(c) 


Index.  433 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

EMINENT  DOMAIN, 

Right  of  commonwealth  to  take  by  $7 

ENCUMBRANCE, 

Search  for   177-178 

ENTIRETIES— See  Estates  by  Entireties. 

Form  of  deed  of  estates  by  229 

EQUITABLE  MORTGAGE   (see  Mortgages)    90 

EQUITABLE    TITLE    10 

Distinguished  from  legal  title  10 

History  of   10 

To  land  vests  in  vendee  execution  of  agreement  of  sale 48 

To  money  vests  in  vendor  on  execution  of  agreement  of  sale  . .  48 

EQUITY    10 

In  property    75 

Of  redemption     75 

Origin  of   75 

ESCROW, 

Can  be  through  third  party  only 64 

Delivery  in    64 

Delivery  by  escrow  in  violation  of  condition  voidable 64 

ESCHEAT, 

At  common  law  147 

Bona  fide  purchasers  who  gain  good  title 38,  153 

Definition    of    147 

Escheator    154 

Informer's   bonus    154 

Limitation  of  time  within  which  commonwealth  may  begin  pro- 
ceedings    153 

Notification  to  commonwealth   154 

Not  complete  until  commonwealth  begins  proceedings 38, 152 

Of  land  held  by  aliens    148 

Of  land  held  by  charities  149 

Of  land  held  by  corporations  38,151 

Of  land  held  by  foreign  corporation  39 

Of  land  held  by  trustees  150 

Proceedings  in   154 

To  commonwealth  in  default  of  known  heirs  of  individual  . .  134  sec.  14 
Waiver  of,  by  commonwealth  as  to  land  illegally  held  for  foreign 

corporation   39 

ESTATES  AT  SUFFERANCE, 

Definition  of   4 

Example  of 4 

Relation  to  less  than  freehold   2 

ESTATE  AT  WILL, 

Definition    of    4 

Its  relation  to  estates  less  than  freehold  2 


434  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pageB. 

Paragraph 

ESTATE  AT  WILL— Continued. 

May  be  created  to  continue  at  will  of  lessee 4 

May  be  created  to  continue  at  will  of  lessor 4 

ESTATE  BY  CURTESY  (see  Descent)  139 

Against  what  land  it  attaches  3»  HO 

Agreement  bars   I41  (d) 

At  common  law    x39 

Created  by  operation  of  law  3 

Creditors  cannot  attach  during  life  of  wife  139 

Desertion  and  nonsupport  bars  I41  (c) 

Divorce  of  wife  A.  V.  M.  will  bar 141(b) 

Divorce  of  wife  a  mensa  et  thoro  does  not  bar 141  (b) 

Enjoyment  postponed  until  death  of  wife   139 

How  it  may  be  barred J4i 

Its  relation  to  estates  of  freehold 2 

Land  conveyed  to  wife  by  deed  of  trust  stipulating  for  wife's 

sole  use,  etc.,  not  subject  to  140 

Land  devised  to  wife  stipulating  wife's  sole  use,  etc.,  not  subject 

to    140 

Release  bars   141  (d) 

Signature  with  wife  to  agreement  of  sale  may  bar 141  (o) 

Vests  upon  marriage   3 

Voluntary  joinder  of  husband  in  wife's  deed  bars 141  (0) 

ESTATES  BY  ENTIRETIES  (See  229  Note), 

Divorce  A.  V.  M.  will  not  convert  into  tenancy  in  common S-D 

Effect  of  judgment  lien  against  husband  or  wife  individually...      S-D 

How  it  differs  from  tenancy  in  common  5-D 

Husband  and  wife  cannot  hold  in  any  other  way  jointly  5-D 

May  be  created  in  personal  property  5"D 

Partition  cannot  be  compelled  5"D 

Survivorship  in    5_D 

What  it  is 5"D 

ESTATES  FOR  YEARS, 

Is  granted  for  a  limited  time   4 

Its  relation  to  estates  less  than  freehold  2 

Must  end  at  definite  time   4 

ESTATES  IN  COPARCENARY, 

Elements  at  common  law    5"B 

Obsolete  in  Pennsylvania  5-B 

ESTATES  IN  JOINT  TENANCY g-A 

Elements  at  common  law     5_A 

In  trust  estates  operative  in  Pennsylvania 5"A 

Obsolete  in  Pennsylvania  by  Act  of  March  31,  1812  5-A 

Survivorship  in,  abolished   5~A 

except  in  trust  estates 5-A 


Index.  435 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

ESTATES  LESS  THAN  FREEHOLD  (see  Less  than  Freehold)  .  4 

At   sufferance    4 

At  will    4 

Is  any  estate  of  uncertain  duration  except  at  will 2 

Years    4 

ESTATES  OF  FREEHOLD   2,3 

At  common  law  2 

By  curtesy   2 

Dower   2 

Fee    simple    2, 3 

Life, 

for  life  of  another  2 

for  one's  own  2 

EVIDENCE, 

Exemplified  certificate  of  recorder  of  deeds  as  122 

Recording  of  deeds  and  mortgages  to  preserve   122 

EXCHANGE, 

Form  of  agreement  to  exchange  real  estate 218 

Form  of  deed  of  246 

EXECUTION 

Of  agreement  of  sale  46 

Of  deed  56(0),  59 

Of  will 161 

EXECUTOR, 

Form  of  acknowledgment  by 209 

Form  of  deed  for  land  sold  at  public  sale  by  order  of  court 232 

Form  of  deed  with  power  to  sell 231 

Form  of  recital  of  title  by  277 

Generally  no  power  to  sell  or  convey  real  estate  without  specific 

authority    36,  231  note 

May  petition  court  for  leave  to  sell  real  estate  if  insufficient 

personalty  to  pay  debts   36 

Power  to  sell  incident  to  office  of 36 

Power  to  sell  where  not  specifically  authorized  36 

Real  estate  does  not  pass  to 36 

unless  directed  by  will  or  not  sufficient  personalty  to  pay 

decedent's  debts   36 

Recital  of  decree  of  court  in  sale  by 36 

Searches   against    174 

EXEMPLIFICATION 

Of  deed  to  land  lying  in  two  counties  may  be  recorded  130 

Of  record  by  recorder  of  deeds  as  evidence  122 

EXEMPTION— WIDOWS'— See  Descent. 

EXTENSION  OF  MORTGAGE, 

Form  of  agreement  of 219 

EXTINCTION 

Of  agreement  of  sale   49 


436  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pases. 

Paragraph 

EXTINGUISHMENT 

Discharge  of  ground  rents  by  116 

Of  ground  rent,  form  of  recital  235 

FARM  LEASE, 

Form  of  deed  of  250 

On  shares,  form  of  deed 251 

FATHER, 

Descent  to,  under  intestate  laws — See  Descent. 

FEE  SIMPLE 

Is   the   greatest    estate    3 

Quantity  of  ownership  in  2,  3 

Relation  to  estates  of  freehold   -. 2 

Represents   absolute  ownership    3 

Words  necessary  to  pass   54(d) 

Words  necessary  to  pass  under  Act  1909  57 

FEME  SOLE  TRADERS— See  Married  Women. 

Conveyance  by  without  joinder  of  husband  valid 35 

Decree  of  court  not  essential   35 

Definition  of   35 

Intestacy  of,  to  her  next  of  kin  33 

May  mortgage  without  joinder  of  husband 35 

Powers  of 35 

Recital  of,  in  deed  or  mortgage 35 

FIDUCIARIES, 

Cannot  purchase  at  own  sale  36 

Generally  power  to  sell  or  convey  limited 36 

If  more  than  one  trustee  or  guardian  all  must  join  in  deed 36 

May  bid  at  own  sale  by  leave  of  court  36 

Power  to  sell  or  convey  to  be  ascertained  from  instrument  cre- 
ating,  etc 36 

Powers  of 36 

Public  or  private  sales  by 36 

Purchaser  from  takes  title  at  own  peril  36 

Recital  in  deed  by   36 

Sales  under  Act  March  14,  1849 36 

Who   are    36 

FIRE  INSURANCE  POLICIES, 

Clause  when  included  in  sale  45(d) 

Perpetual  remains  in  force  forever  45 (d) 

based  on  2  per  cent,  of  amount  insured  for  45  (d) 

may  be  surrendered  and  cancelled  45  (d ) 

Term 

cancellation  value  of   45  (d) 

is  issued  for  term  of  years  45  (d) 

premium  varies   45  (d) 

FIRST  MORTGAGE  (see  Mortgage)   91 


Index.  437 

References  are  to  numbered  naragraphs  and  not  to  pages. 

Paragraph 
FIXTURES  (See  50-5), 

Are   annexed   to   freehold    45  (f) 

Clause  in  agreement  of  sale   45 (f) 

Depends  on  intention  to  make   45(0 

Should  be  specified  in  agreement  of  sale 45(f) 

What  are    45(f) 

FORECLOSURE— See  Mortgages. 
FOREIGN  CORPORATIONS 

Admitted  on  terms   39 

Definition  of   39 

Exceptions  as  to  right  to  hold  land  in  certain  cases  39 

In  general  may  not  hold  land  in  Pennsylvania  39 

Land  illegally  held  escheats  39 

May  be  excluded  from  state  39 

May  purchase  at  sheriff's  sale  to  protect  lien  39 

Must  register  with  secretary  of  commonwealth 39 

Power  to  hold  land  in  Pennsylvania  39 

Power  to  mortgage  land  held  by  special  statutory  authority  ....  39 
Real  estate  bought  at  judicial  sale  must  be  disposed  of  in  certain 

time    39 

Rights  purely  statutory   39 

Waiver   of   escheat   by   commonwealth   as   to    land    improperly 

held  prior  to   191 1    39 

FORGED  INSTRUMENTS, 

Recording  of  128 

FORMS, 

Abstract  of  title  190 

Acknowledgment 

by  administrator 209 

by  attorney  in  fact 210 

by  attorney  in  fact  for  a  corporation  67 

by  corporation  211 

by  executor 209 

by  individual  208 

by  trustee 209 

Affidavit   (general  form)    212 

of  probate  of  deed  not  acknowledged  213 

of  probate  of  deed  not  acknowledged  where  witness  is  dead 

or  absent    214 

to  remove  objections  from  a  settlement  certificate 215 

Agreement  of  exchange  of  real  estate  218 

of  sale  of  real  estate  216 

of  sale  of  real  estate  by  a  builder 217 

to  extend  mortgage   219 

Application  for  building  association  loan  93 

for  title  insurance  201 


438  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 
FORMS— Continued. 

Assignment  of  ground  rent  220 

of  lease  221 

of   mortgage    223 

of  right  to  purchase  money  mortgage  222 

Bond  and  warrant — See  Mortgage. 

Brief  of  title    190 

Certificate  or  declaration  of  no  set-off  224 

Claim  of  title  by  adverse  possession 23 

Codicil— See  Will. 

Declaration  or  certificate  of  no  set-off 224 

Declaration  of  trust  225 

Deed    by    administrator    for    land    sold"  by    order    of   orphans' 

court  for  payment  of  debts,  private  sale  (recital)    282 

by  administrator  for  land  sold  by  order  of  orphans'  court 

for  payment  of  debts,  public  sale   232 

by  administrator  in  partition  by  orphans'  court  240 

by  attorney  in  fact   230 

by  corporation    228 

by  heirs   and   corporation   guardian  of   minor  heir   selling 

under  Price  Act,  etc 235 

by  heirs   (Price  Act)    234 

by  individual  (short  form)    227 

by  individual  (usual  form),  226 

by  individual  to  trustees  of  an  unincorporated  church 237 

by  master  in  partition  (equity)    239 

by  sheriff  (new  form,  Act  of  1905)    236 

in  partition  by  administrator  (orphans'  court)    240 

in  partition  by  sheriff  (common  pleas)   241 

in  partition,  voluntary  238 

of  claim  of  title  by  adverse  possession  under  Act  of  1901  . .  23 

of   confirmation    244 

of  easement  245 

of  exchange  of  real  estate  246 

of  executor  for  land  sold  by  order  of  orphans'  court  for 

payment  of  debts ;  private  sale  (recital)    282 

of  executor  for  land  sold  by  order  of  orphans'  court  for  pay- 
ment of  debts,  public  sale 232 

of  executor,  power  of  sale  in  will  231 

of  extinguishment  of  ground  rent  220 

of  ground  rent  247 

of  guardian  for  land  sold  by  order  of  orphans'  court 233 

to  husband  and  wife  as  tenants  by  entireties  229 

of  quit  claim  (short  form)   243 

of  quit  claim  (usual  form)    242 

of  right  of  way  245 

to  trustees  of  an  unincorporated  church  237 


Index.  439 

References  are  to  numbered  oaragraphs  and  not  to  pages. 

Paragraph 
FORMS— Continued. 

Entireties,  deed  of 229 

Extinguishment  of  ground   rent    220 

Ground  rent,  assignment  of  220 

deed  of  247 

extinguishment  of     220 

Lease  (all  waivers)  for  property  in  city  248 

another  form  of 249 

for  farm   2,0 

for  farm  on  shares  251 

Letter  or  power  of  attorney  to  act  and  execute  instruments  for 

principal    2r2 

by  corporation  to  execute  instruments  67 

of    revocation    25? 

of  substitution    2zx 

to  satisfy  mortgage     254 

Mortgage,  agreement  to  extend   2i9 

and  bond  and  warrant  (individual  sci.  fa.)   256 

assignment    of    22, 

building  and  loan,  and  bond  and  warrant 257 

corporation  (sci.  fa.)    2e3 

corporation  to  trustee  to  secure  bond  issue 259 

first ...."  256 

installment   2gr 

leasehold   2Q2 

release    of    20^ 

second,  and  bond  and  warrant 26i 

second  mortgage  clause    260 

settlement,  statement  of 206 

Power  of  attorney— See  Letter  of  Attorney. 

Recital  of  title  by  administrator 278 

by  administrator  for  land  sold  at  private  sale  for  payment 

of  debts  by  order  of  orphans'  court  under  Act  of  191 1 282 

by  adverse  possession   272 

by  attorney  in  fact 27g 

by  deed 265 

by  deed,  another  form  266 

by  descent    ^ 

by  descent,  another  form   '  270 

by  executor   2__ 

by   executor   for  land  sold   at   private   sale   for   payment  of 
decedent's  debts  by  order  of  orphans'  court  under  Act 

°f   ^    282 

hy  patent 267 

by  patent,  descent  and  deed  271 

by  sheriff  for  property  of  a  decedent  280 

by  sheriff's  sale   .   .  .     27g 


440  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 
FORMS— Continued. 

by  will  268 

in  partition  by  orphans'  court  274 

in  partition  by  writ  of  275 

in  partition,  voluntary  273 

in  purchase  money  mortgage  to  a  third  party 281 

see  generally  for  other  recitals  283 

Release  of  judgment 264 

of  mortgage    263 

Settlement  certificate   202 

statement  conveyance  205 

statement  conveyance,  another  form     205 

statement   mortgage    206 

statement  mortgage,  another  form   . .- 206 

Will    284 

clause  of,  giving  executor  power  to  sell  real  estate 285 

codicil  for  a  child  born  after  date  of  will  287 

codicil   to    286 

FRAUDS,  STATUTE  OF— See  Statute  of  Frauds. 
FREEHOLD, 

Definition  of   3 

Extension    of    2, 3 

How  divided 2 

Less  than,  definition  of  4 

GENERAL  WARRANTY— See  Warranty;  Deeds. 
GIFT, 

Deed  of,  to  infant  valid 32 

GOOD  TITLE    8 

Specification  of,  in  agreement  of  sale  45 (a) 

GRANDCHILDREN, 

Descent  by,  under  intestate  laws — See  Descent. 
GRANT  AND  CONVEY, 

Meaning  of,  under  Act  of  1909 58 

GRANT  OF  INTEREST 

Clause  of,  in  Deeds — See  Deeds. 

Ira  land  to  be  in  writing  43 

GRANTEE, 

Definition  of   4 

Duty  to  inspect  record  for  defective  indexing  or  recording  . . .  127 

Liability  of,  to  grantor 54(f) 

Liability  of,  to  mortgagee   54(g) 

GRANTOR, 

Acknowledgment  of,  must  be  in  person 67 

Definition  of   4 

GROUND  RENT, 

Action   of   assumpsit    114 

Action  of  ejectment  113. 


Index.  441 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 
GROUND  RENT— Continued. 

Arrearages  of  rent  * x5 

Assumpsit,  action  of    x  :4 

Compared  with  mortgages   I2° 

Definition  of   I04 

Discharge 

by  extinguishment  :  T° 

form  of  Il6 

by  judicial  sale  119 

by  merger *  *7 

by  order  of  court  after  twenty-one  years  118 

Distress IIZ 

Ejectment,  action  of  IX3 

Extinguishment   of    JI° 

Form  of  I05 

Form  of  assignment  of  220 

Form  of  deed  of 247 

History  of   I04 

Inheritance   of    I05 

Irredeemable I07 

Is  real  estate IQ6 

Judicial   sale   on :I9 

Lien  of  nS 

Merger  of IX7 

Opportionment  of I09 

Payment    of    rent II0 

Redeemable    IQ8 

Re-entry    II2 

.  Remedies  for  collection  of, 

by  action  of  assumpsit  1 14 

by  action  of  ejectment  H3 

by  distress       ITI 

by   re-entry 1 12 

Rent,  payment  of   1 10 

GUARDIAN, 

All  must  join  in  deed  if  more  than  one 36 

Form  of  deed  for  real  estate  sold  by  order  of  court 233 

Form  of  deed  reciting  abstract  of  will  and  decree  of  court  under 

Price  Act   234 

Generally  no  power  to  sell  or  convey  real  estate  without  specific 

authority  36 

Powers  of,  for  persons  adjudged  weak-minded,  etc 31 

Powers  of,  for  insane  persons 31 

Searches  against    174 

To  administer  estate  of  insane  person 29> 

To  protect  estate  of  aged  person 31 


442  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  oaragraphs  and  not  to  pages. 

Paragraph 

HABENDUM— See  Deeds. 

Its   use    55 

Meaning  of 55  (<*) 

HABITUAL  DRUNKARD, 

Deed  of,  voidable  only 3° 

Definition  of   3° 

Habitual,  by  decree  of  court  3° 

effect  of   30 

Proof  of  drunkenness 3° 

HALF  BLOOD, 

Who  are  (see  Descent)    :36 

HEIRS— See  Descent. 

Collaterals    •  •  •  • •  T33 

Form   of   deed   with   corporation   guardian    with    recital   of   title 

gained  by  will    235 

Form  of  deed  with  guardian  reciting  abstract  of  will  and  court 

proceedings  under  Price  Act 234 

Lineals     J33 

Natural — right  to  inherit  (see  Descent)   132(0) 

Use  of  word  in  deed — See  Deeds. 

HOLOGRAPH  WILL  J5S 

HUSBAND, 

Descent  by,  under  intestate  laws — See  Descent. 

Election  of,  to  take  against  wife's  will  must  be  recorded 130, 166 

Joinder  not  necessary  in  wife's  assignment  of  judgment 82 

Joinder  not  necessary  in  wife's  assignment  of  mortgage  82 

Joinder  not  necessary  in  wife's  satisfaction  of  mortgage  82 

Joinder  of,  not  necessary  in  deed  or  mortgage  where  wife  feme 

sole  trader  35 

Loses  right  in  wife's  estate  where  wife  feme  sole  trader 35 

Right  of  surviving  husband  to  take  against  will  166 

Signature  of,  in  agreement  of  sale 4*> 

Signature  of,  to  agent's  authority  to  sell  real  estate  46 

HUSBAND  AND  WIFE, 

Form  of  deed  to   229 

ILLEGITIMATE  HEIRS— See  Descent. 

IMPROVEMENTS, 

Provision  for,  in  agreement  of  sale   5°-4 

INCUMBRANCE— See  Encumbrance. 

Clause  in  agreement  of  sale  45 

free  and  clear  45 

if  subject  to  45 

Clause  in  deed — See  Deeds. 

Personal  liability  of  grantee  for   54(g) 


Index.  443 

References  are  to  numbered  paragraphs  ana  not  to  pages. 

Paragraph 

INDENTURE— See  Deeds. 

Definition  of   S2 

Differs  from  deed  poll 52 

History  of   52 

INDEX— See  Searches. 

Ad  sectum  *72 

Arrangement  of  recorder  of  deeds  172 

Direct  or  grantor    l72 

General,  not  required  prior  to  1875 I27 

How  to  search  l72 

Judgment  index   x°° 

arrangement   of    I°° 

how  to  search  in  I"° 

of  common  pleas,  at  prothonotary's  office 180 

of  criminal  courts  located  in  office  of  clerk  of  quarter  ses- 
sions    l°l 

of  Supreme  Court,  at  prothonotary  of  Supreme  Court  office  179 

of  United  States  courts,  at  clerk's  office 182 

where  located   I°° 

Locality  in   Philadelphia   185 

Mortgage  indexes   I7o 

Of  deeds  I27 

Of  mortgages    • I27 

Of  records  x72 

Recorder  of  deeds  required  to  I27 

INDEXING, 

Decree  of  court  dissolving  personal  liability  of  mortgagor  on 

bond  81 

Defective,  effect  of   I27 

Duty  of  mortgagee  or  grantee  to  examine  record  for  defective . .  127 

Duty  of  recorder  of  deeds  as  to  I27 

Notice  of  encumbrance   I27 

Of  deeds  *27 

Of  instruments  required  to  be  recorded  i27 

Of  mortgages I27 

Suit  to  preserve  lien  of  decedent's  debts  183 

INFANTS, 

Contracts  for  necessaries  valid 32 

Contracts  of,  not  void  32 

Contracts  of,  voidable 32 

Contracts  to  acquire  or  convey  real  estate  voidable 32 

Deed   of,   gift   to,   valid    32 

Deed  of,  voidable  only 32 

Definition    of     32 

Devise  to,  valid   32 

Disabilities  in  mortgaging 83 

May  acquire  by  gift,  devise  or  descent  32 


444  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

INFANTS— Continued. 

Presumption  of  ratification  by  failure  to  disaffirm  32 

Ratification  of  deed  by,  after  reaching  majority  32 

Return  of  purchase  money  on  disaffirming  32 

INTESTACY— See  Descent. 

Of  feme  sole  trader    35 

INTESTATE— See  Descent. 

Laws  of  Pennsylvania J34 

Order  of  inheritance  *34 

Synopsis  of   J35 

IRREDEEMABLE  GROUND  RENTS  (see  Ground  Rents), 107 

ISSUE, 

Descent  by,  under  intestate  laws — See  Descent. 

JOINT  ESTATES '. 5 

At  common  law  5- 

Definition  of 5 

Kinds  of  5 

JUDGMENT— See  Sheriff's  Sales. 

Definition  of   l77 

Duration  of  lien  of,  is  five  years   l77 

Effect  of  J77 

Entry  of,  on  warrant  of  attorney 81 

Form  of  release  of  204 

Is  a  lien  on  a  life  estate l77 

Is  a  lien  on  curtesy x77 

Is  a  lien  on  defendant's  real  property,  but  not  on  personal 177 

Is  a  lien  on  dower l77 

Is  a  lien  on  ground  rent  *77 

Is  a  lien  whether  damages  are  liquidated  or  not 180 

Is  not  a  lien  on  leasehold  *77 

Is  not  a  lien  on  mortgage l77 

Is  not  a  lien  on  real  estate  bought  after  entry  unless  revived  by 

sci.  fa l77 

Is  not  a  lien  on  real  estate  sold  before  entry 177 

Magistrate's  judgment  is  not  a  lien  l7° 

May  be  revived  after  five  years l77 

Of  appellate  court  l79 

Of  common  pleas  court  I°° 

Of  criminal  court   I°I 

Of  United  States  court  l82 

Of  what  courts  are  liens l7% 

Search  for  (see  Searches)   l77 

When  United  States  court  judgment  is  a  lien  178 

JUDGMENT  LIENS, 

Where  to  search  for  l7° 


Index  445 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 
JUDGES  OR  JUSTICES 

Of  any  court  of  record  of  any  state  or  territory,  power  to  take 

acknowledgment,  etc 70 

Of  common  pleas  court  of  any  state  or  territory,  power  to  take 

acknowledgment,  etc 70 

Of  common   pleas   court  of   Pennsylvania,   power  to   take   ac- 
knowledgment,   etc 70 

Of  District  Court  of  U.  S.,  power  to  take  acknowledgment,  etc.  .        70 

Of  probate  court  of  any  state  or  territory,  power  to  take  ac- 
knowledgment, etc 70 

Of  Superior  Court  of  any  state  or  territory,  power  to  take  ac- 
knowledgment, etc 70 

Of  Supreme  Court  of  any  state  or  territory,  power  to  take  ac- 
knowledgment, etc 70 

Of  Supreme  Court  of  Pennsylvania,  power  to  take  acknowledg- 
ment, etc 70 

Of  Supreme  Court  of  U.  S.,  power  to  take  acknowledgment,  etc.        70 
JUDICIAL  SALE, 

Arising  under  writ  of  execution  100 

By  order  of  court  !0o 

By  orphans'  court  discharges  lien  of  decedent's  debts 183 

By  sheriff  discharges  a  lien  of  judgment  sold  on,  and  subsequent 


liens 


100 


Discharge  of  ground  rents  by  hq 

Discharge  of  mortgage  by I00 

Foreign  corporations  may  purchase  at,  to  protect  lien 39 

Subject  to  tax  and  municipal,  etc.,  liens  100 

When  mortgage  lien  prior  to  judgment  liens  generally 100 

JUSTICES — See  Judges  and  Justices. 

Of  the  peace — Power  to  take  acknowledgments,  etc 70 

KIN— NEXT  OF— See  Descent. 

LAND, 

Definition  of   j 

LEASE— See  Deeds. 

Farm  lease,  form  2«o 

Farm  lease  on  shares,  form  2151 

For  greater  term  than  three  years  to  be  written  43 

For  greater  term  than  twenty-one  years  may  be  recorded 130 

Form  of  assignment  of 221 

Of   city   property,   form    248 

To  vendee  in  agreement  of  sale  eo_2 

LEASEHOLD  MORTGAGE  (see  Mortgages)    .......... .......  ]  95 

Form    262 

LEGACY, 

Definition  of   .-_ 

LEGAL  TITLE,                                                                5 

Held  by  trustee  


446  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

LEGATEE, 

Definition  of   J55 

LETTERS  OR  POWERS  OF  ATTORNEY, 

Acknowledgment  of  deed  by  "7 

Form  of  acknowledgment  by  virtue  of 2I0 

Form  appointing  attorney  in  fact  to  act  for  and  execute  instru- 
ments    2S2 

Of    substitution    2S3 

Recording  of  *3° 

Revocation  of  a  255 

To  constitute  agent's  authority  in  agreement  of  sale  47 

To  satisfy  a  mortgage  254 

LICENSE, 

Agents  and  brokers  must  be  J9i 

Effect  of  not  obtaining I92 

LIENS, 

Created  by  mortgage   73 

Judgment  liens — See  Judgments. 

Judgment,  where  to  search  for  l7% 

Mechanics'    l84 

Municipal    *°4 

Of  decedent's  debts  discharged  by  orphan's  court  sale 183 

Of  decedent's  debts  (see  Decedent's  Estate,  also)    183 

Of  ground  rent   II5 

Of  mortgages  dates  from  • 76 

Of  mortgages  or  defeasible  deeds  dates  from  time  of  recording  .  126 
except  purchase  money  mortgages  if  recorded  within  sixty 

days    • I26 

Of  purchase-money  mortgages  date  from  time  of  execution  when  126 

Of  two  purchase-money  mortgages  on  same  day  are  equal  when  126 

Search  for  tax I8o 

Search   for  unfiled    I86 

LIFE  ESTATES— See  Estates  for  Life. 

Definition  of   3 

May  be  for  grantor's  life  2,  3 

May  be  for  life  of  another  2»  3 

Must  cease  with  the  life  of  the  person  on  whom  granted 3 

Relation  to  estates  of  freehold 2 

Title  of,  by  adverse  possession  24 

LIGHT, 

If  only  convenient,  does  not  pass  as  appurtenant  when 54  W 

LIMITATIONS,  STATUTE  OF, 

In  Pennsylvania  14 

LINEAL  HEIRS, 

Who  are  (see  Descent)   133 

LIQUIDATED  DAMAGE, 

Clause  in  agreement  of  sale  45 


Index.  447 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

LIQUIDATED  DAMAGES— Continued. 

Favorable  to  vendor  when  45 

LOCALITY  INDEX, 

In  Philadelphia  185 

LUNATICS— See  Unsound  Mind. 

MAGISTRATES, 

Judgments  of,  not  a  lien  on  real  estate  178 

Of  other  state,  with  power  in  own  state,  may  take  acknowledg- 
ments,   etc 70 

MAP  OR  PLAN  OF  LOTS  MAY  BE  RECORDED  130 

MAJOR 

Or  other  officer  of  higher   rank  in  military   service  of  United 

States,  power  to  take  acknowledgments,  etc 70 

MARKETABLE  TITLE  9 

Definition  of   9 

Distinguished  from  good 9 

May  be  defined  by  agreement  9 

Not  marketable  if  holder  exposed  to  litigation  9 

Specification  of,  in  agreement  of  sale  45  (0 

MARRIAGE, 

Articles  relating  to  land,  etc.,  may  be  recorded 130 

Of  parent  to  legitimate  children   132(b) 

Revokes  will  pro  tanto   168 

Vests  dower 144 

MARRIED  WOMEN  34 

Cannot  become  accommodation  indorser,  maker,  guarantor  or 

surety 34 

Cannot  convey  or  mortgage  without  joinder  of  husband 34 

Conveyance  of  husband  to,  valid  34 

Conveyance  to  husband  valid  34 

Disabilities    of    34 

Disabilities  of,  at  common  law 34 

May  assign  judgment  without  joinder  of  husband  82 

May  assign  mortgage  without  joinder  of  husband 82 

May  satisfy  mortgage  without  joinder  of  husband  82 

Power  to  mortgage  (see  Mortgages)    82 

Releases,  contracts,  etc.,  of,  may  be  recorded  130 

Rights  of,  under  Act  June  8,  1893 34 

Separate  acknowledgment  by,  not  required  in  Pennsylvania  ...  68 

MARSHAL'S 

Deeds  may  be  recorded   130 

Sales,  searches  for   174 

MATURITY  OF  MORTGAGE 97 

MAYOR  OR  RECORDER, 

Of  Allegheny,  power  to  take  acknowledgments,  etc 70 

Of  Carbondale,  power  to  take  acknowledgments,  etc 70 

I        Of  City  of  Philadelphia,  power  to  take  acknowledgment,  etc.  ...  70 


448  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 
MAYOR  OR  RECORDER— Continued. 

Of  foreign  cities  or  towns,  power  to  take  acknowledgments,  etc.  70 

Of  Lock  Haven,  power  to  take  acknowledgments,  etc 70 

Of  Northern  Liberties,  power  to  take  acknowledgments,  etc.  . .  70 

Of  Scranton,  power  to  take  acknowledgments,  etc 7° 

Of  Williamsport,  power  to  take  acknowledgments,  etc 7° 

MECHANICS'  LIENS, 

Right  to  file  may  be  waived 184 

Search  for   184 

MERGER, 

Discharge  of  ground  rents  by 117 

Of  agreement  qf  sale  by  delivery  of  deed  49(a) 

MINISTER  PLENIPOTENTIARY, 

Power  to  take  acknowledgments,  etc 7° 

MISTAKE 

Of  recorder  of  deeds  in  recording 127 

MORTGAGE, 

Advance  money   89 

assignment  of,  to  bona  fide  purchaser  89 

definition   of    89 

form  of 89 

future  advances  in 89 

lien  of,  as  to  subsequent  encumbrances  89 

mechanics'  liens  subject  to  89 

where  mortgagee  to  make  all  advances  89 

Assignment  of    101 

certificate  of  "no  set-off"  102,  103 

definition     101 

effect  of   102 

form     IOI 

married  woman  may  execute  without  joinder  of  husband  ..  82 

notification  to  mortgagor 102 

payment  to  mortgagee  without  notice  102 

rights  of  holder  of  102 

set-off  of  mortgagor  against   102 

should  be  recorded 101 

recording  of    130 

rights  of  assignee 102 

Bond   and   warrant   accompanies    73 

Bond  distinguished  from   73 

Book  127 

Building  and  loan  association,  form  257 

Building    association    93 

form   of    94 

Building  association, 

application   for    93 

form   of    94 


Index.  449 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

MORTGAGE— Continued. 

bond  and  warrant  accompanying  94 

differs  from  ordinary  mortgage   94 

effect  of  one  year  term  94 

expiration  of,  on  maturity  of  stock 94 

first  and  second  compared  94 

form  of  94 

nature  of    94 

payment  of  prior  to  maturity 97 

term  of  94 

By  corporation  valid  as  to  land  properly  held  39 

restricted  by  Constitution  of  1874  39 

By  feme  sole  trader  35. 

Capacity  to, 

anyone  with  power  to  alienate  generally  82 

fraudulent  mortgage  and  sale  to  defeat  dower  voidable  ...        82 

married  man,  may  without  joinder  of  wife  82 

married  women  may,  if  divorced  82 

married  woman  may,  living  apart  under  articles  of  separa- 
tion  with   waiver    82 

married  woman  may  mortgage  to   raise   money  for   hus- 

'  band's  use    82 

married  woman  may  mortgage  to  secure  debt  of  husband  . .        82 

Certificate  of  no  set-off   , I03 

Compared  with  ground  rents   120 

Conveyance,   portion   of    77(a 

conditions  of  77(a 

failure  to  comply  with    77 (a 

payment  of  insurance  premiums   77(<* 

payment  of  interest   77 '  (o 

production  of  tax  receipts   77(a 

conveyance   proper 77  (0 

form  of  conveyance   77  (a 

premises  of   77^.0. 

Conveyance  proper, 

a  fee  simple  deed  77(b 

contains   description    77(b 

Conveyance    to    mortgagee    73 

Corporation    (sci.  fa.)    form    258 

Corporation  to  trustee  to  secure  bond  issue,  form  259 

Create   lien    73 

Defeasance 78 

when  not  annexed  to  conveyance  78 

Defeasance  portion  of, 

a  contemporaneous  agreement  converting  deed  to  pledge  . .  77(2) 

makes  void  conditions  on  performance   77(2) 

should  be  annexed  to  conveyance  to  save  difficulty 78 


450  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

MORTGAGE— Continued. 

when  not  annexed  to  conveyance  78 

is  voidable  by  subsequent  grantee  or  mortgagee  for  value  78 

must  be  delivered  by  grantee   78 

must  be  in  writing  78 

must  be  signed  by  grantee  78 

Definition  of   73 

Disabilities  in  creating, 

corporations   86 

power  to  mortgage  restricted  86 

when  mortgage  is  an  increase  of  indebtedness  86 

infants    under     83 

Discharge  of, 

by  judicial  sale 100 

effect  on  mortgage  lien    100 

purchaser's  title   100 

by  order  of  court, 

jurisdiction  98 

no  payment  of  principal  or  interest  for  twenty  years  ...  98 

when  holder  has  died   98 

when  holder  has  not  satisfied 98 

by  payment 97 

actual   97 

presumed 97 

by  release  of  99 

agreement  to  execute    99 

effect  of  sale  of  portion  99 

form  of  99 

from  trustee  must  be  supported  by  consideration 99 

should  be  recorded  99 

satisfaction  of  record  97 

original  must  be  produced 97 

when  original  lost  97 

Effect    of    76 

Equitable     90 

Equitable, 

bona  fide  purchasers  not  affected  by 9° 

definition    of    9° 

enforceable  against 9° 

in  Pennsylvania   9° 

Equity  of  redemption  of    75 

First   91 

First, 

a  first  mortgage  lien  91 

as  an  investment   91 

in  building  associations   94 

lien  of  9i 


Index.  451 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

MORTGAGE— Continued. 

Foreclosure  by  sci.  fa.  in  Pennsylvania  75 

Foreclosure,  origin  of   75 

Form  of   77 

Form  of  assignment  of   223 

Form  of  extension  of 219 

Form  of  release  of  263 

History  and   development  of    74 

Index  of  127 

Installment,  sci.  fa.  mortgage,  etc 261 

Judicial    sale     100 

Leasehold, 

acknowledgment    of     95 

extension  of  lease  does  not  extend 95 

landlord's  rights  under  lease  not  affected   95 

lease  for  term  of  years 95 

lien  of   95 

must  be  acknowledged 95 

must  be   recorded    95 

recording  of    95 

right  strictly  construed   95 

statutory  authority  for    95 

Leasehold   mortgage,    form    262 

Lien  not  divested  by  judicial  sale  when 76 

Lien  on  mortgaged  property  from  recording  76 

Lunatics 84 

trustees    85 

lack  of  power  to  sell  gives  no  implied  power  to  mortgage  85 

power  to  sell  implies  power  to  mortgage 85 

Made  by  corporations 

bondholders'  right  to  foreclosure   87 

foreclosure  of,  by  bondholder  87 

increase  corporate  indebtedness   86 

may  loan  on,  to  one-half  capital  stock  paid  in  and  at  6  per 

cent 86 

not  for  profit  may  mortgage  up  to  $500,000  at  6  per  cent.  . .  86 

power  of  restricted  86 

to  individual    87 

to  secure  bond  issue   87 

to  trustee  to  secure  bond  issue 87 

when  an  increase  of  indebtedness  must  be  by  proceedings  to 

Made  by  infants,  voidable   83 

Made  by  lunatics    84 

Made  by  trustees, 

power  to  sell  implies  power  to 85 

without  power  to  sell,  power  to  mortgage  must  be  expressly 

given    85 


452  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 
MORTGAGE— Continued. 

Maturity  of   97 

"at  expiration  of"   97 

Modern,  differs  from  common  law  76 

Mortgagee,  certificate  of  residence  of  79 

Mortgagor's  liability  in  °* 

Mortuum  vadium  at  common  law  74 

No  set-off,  certificate  of  I03 

Origin  of  equity  of  redemption  of  75. 

Payment  of   97 

Payment  of, 

building  association,  before  maturity   97 

by  mortgagor  before  maturity 97 

discharges  97 

dispute  in,  money  may  be  paid  into  court 97 

presumption    of    97 

to  mortgagee  without  notice  of  assignment 97 

Principal  parts  of  •  •        77 

Proceedings  to  satisfy  when  presumed  paid   98 

Purchase  money  °° 

definition   of    °° 

execution  of •  •  •        °° 

lien  dates  from  time  of  execution  if  recorded  in  sixty  days        88 

presumption  where  two  executed  same  day  88, 92 

recording  of    80 

second  mortgage  clause  in  subsequent  mortgage  88 

two,  on  same  date   88 

Purchase  money,  recording  of  (see  Purchase  Money  Mortgage)       126 

Ratification  of,  by  infant  83 

Recital  in,  by  feme  sole  trader 35 

Recording   of    I2° 

Recording  of 

death  of  mortgagor  before   9° 

failure  in,  protects  bona  fide  purchasers  only 96 

lien  dates  from  time  of 9° 

purchase-money  mortgage  from  date  of  execution 96 

Regarded  as  pledge  of  land  to  secure  performance  of  conditions        76 

Release 99 

Satisfaction  of, 

married  woman  may  order,  without  joinder  of  husband  ...         82 

Sci.   fa 77(a) 

attorney's  commission  in    77(a) 

a  penalty  only    77(a) 

is  legal   in    77(a) 

clause  in   77(a) 

definition   of    77(a) 

form    8° 


Index.  453 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 
MORTGAGE— Continued. 

mortgage  has  right  to  issue  77(a) 

usual  method  of  proceeding  77(a) 

Sci.  fa.  with  bond  and  warrant,  form  256 

Search  for   176 

Second   92 

Second, 

in  building  associations  94 

second  mortgage  lien   92 

under  and  subject  clause  92 

imperative  when 92 

to  purchase  money  mortgage  92 

Second  mortgage  clause  92, 260 

Time  within  which  must  be  recorded   126 

To  be  recorded  in  separate  book  127 

Transcribing    127 

Two  principal  parts  to    77(a) 

Unrecorded,  good  against  mortgagor   126 

Vivum  vadium  at  common  law  74 

Warrant  of  attorney  with   72, 

Who  may  make, 

corporations    86 

infants    83 

married  women    82 

persons  under   disabilities    84 

to  secure  bond  issues   87 

trustees    85 

MORTGAGEE, 

Assignee  of,  cannot  sue  grantee  of  land  subject  to  mortgage..  54(g) 

Cannot  sue  grantee  of  land  subject  to  mortgage  54(g) 

Certificate  of  residence   79 

Duty  to  inspect  record  for  defective  indexing  or  transcribing  . .       127 

May  sue  original  mortgagor  when  54(g) 

Payment  to,  without  notice  of  assignment 97 

Second  mortgage  clause  92 

MORTGAGOR, 

Personal  liability  on  bond  after  conveying 81 

avoidance  of,  by  tender,  refusal  and  decree  of  court 81 

Subject  to  suit  on  bond  when  54(g) 

Unrecorded  mortgage  good  against   126 

MORTUUM  VADIUM  74 

MOTHER, 

Descent  to,  under  intestate  laws — See  Descent. 
MUNICIPAL  LIENS, 

Search  for  184 

NAMES 

Of  bastards   132(6) 


454  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

NAMES— Continued. 

Of  parties  to  deed — See  Deeds. 
NATURAL  HEIRS— See  Descent;  Heirs. 
NEXT  OF  KIN, 

Descent  of,  under  intestate  laws — See  Descent. 
NONSUPPORT 

May  bar  curtesy   X4X  (  w 

NO  SET-OFF, 

Certificate  of  I03 

Form  of  certificate  of 224 

NOTARY  PUBLIC, 

Acknowledgment  of  deed  before 56(c) 

Application  for  office  of • 71 

Commission  of,  must  be  recorded 7* 

Female,  marrying,  must  return  commission  7* 

How  to  become  one  71 

In  Pennsylvania,  power  to  take  acknowledgments,  etc 70 

May  act  outside  of  county  for  which  commissioned  71 

May  be  appointed  by  governor  when  senate  not  in  session 71 

Must  append  date  of  expiration  of  commission 69(g) 

Must  file  bond  before  qualifying  for  office 71 

Of  any  state  or  territory  of  United  State,  power  to  take  acknow- 
ledgments, etc 70 

Should  inquire  grantor's  identity  &7 

When  director,  officer  or  stockholder  of  bank  .etc.,  may  not  act 

as,  for  his  company  69(g) 

NOTICE, 

Constructive,  by  recording  I23 

Effect  of  recording  as  to  I23>  I27 

To  world  by  recording    I23 

NUNCUPATIVE  WILLS— See  Wills. 
OATHS — See  Acknowledgments. 
OBJECTIONS, 

Form  of  affidavit  to  remove  from  settlement  certificate  215 

OBLIGEE  IN  BOND   80 

OBLIGOR  IN  BOND   80 

OFFICERS 

Discharge  of,  may  be  recorded   J3° 

Of  other  state  with  power  in  own  state  may  take  acknowledg- 
ments, etc 7° 

ORDINANCES 

Vacating  streets,  lanes  or  alleys  may  be  recorded  130 

PARTITION, 

Administrator's  deed  in  240 

Form  of  recital  of  title  by,  in  voluntary  deed 273 

Form  of  recital  of  title  by  order  of  court  in  274 

Form  of  recital  of  title  by  writ  of 275 


Index.  455 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

PARTITION— Continued. 

Form  of  voluntary  deed  in   238 

In  tenancy  in  common S-C 

Master's  deed  in  equity 239 

Sheriff's  deed  in 239 

PARTNERS    4i 

Land  purchased  for  firm  use  should  be  set  out  in  deed 41 

Real  estate  held  by,  for  purpose  of  business  as  personalty 41 

Real  estate  purchased  jointly  by  41 

PATENT, 

Form  of  recital  of  title  by  267 

Granted  by  commonwealth  may  be  recorded   130 

PAYMENT, 

Discharge  of  mortgage  by  97 

Of  building  association   mortgage    97 

Presumption  of,  in  mortgage   98 

To  mortgagee  without  notice  of  assignment  97 

PER  CAPITA, 

Meaning  of   135  (2) 

PERFECT  TITLE  8 

Exists  when    8 

PERSONAL, 

Liability  of  mortgagor  after  parting  with  title 81 

avoidance  of,  by  straw  man  81 

avoidance  of,  by  tender,  refusal  and  decree  of  court 81 

Property,  distinguished  from  real  1 

Real  estate  of  partnership  treated  as  41 

PERSONS 

Of  unsound  mind, 

who   are    29 

Persons  under  duress 

who  are    33 

PER  STIRPES, 

Meaning    of    135  (2) 

POLL,  DEED  '    52 

Differs  from  indenture   52 

Executed  by  one  party  52 

POSSESSION, 

Actual    6, 15 

Adverse,  must  be  actual  15 

must  pe  continuous 16 

must  be  hostile   19 

must  be  visible  and  notorious  18 

Assignment  of  lease  does  not  give 45(g) 

Clause  in  agreement  of  sale  45(g),  50(1) 

Constructive  possession  of  owner  15 

Naked 6 


456  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

POSSESSION— Continued. 

Of  deed  presumption  of  delivery  °3 

Right  to   7 

Subject  to  lease    45(g) 

POWERS  OF  ATTORNEY— See  Letters  of  Attorney. 

To  sell,  etc.,  may  be  recorded  x3° 

PREMISES 

In    deed    *>4 

PRESUMPTION 

Against    duress    33 

In  executing  deed  59 

Of  delivery  by  possession  of  deed  63 

Of  payment  of  mortgage   '•  •  • 97 

Of  ratification  by  infants  on  attaining  majority 32 

PRINCIPAL, 

Ratification  of  agent's  acts   40 

PROBATE, 

Form  of  probate  of  deed  2I3 

Form  of  probate  where  witness  is  deceased  or  absent 214 

If  no  subscribing  witnesses  7% 

Meaning  of   72 

Must  be  attested  by  justice  of  peace 72 

Of  deed  permits  recording 72 

Of  deeds  where  grantor  dead  or  unable  to  appear  70,  72 

Of  wills  (see  Wills)    l69 

When  deed  may  be  72 

PROPERTY, 

Personal,  distinguished  from  real  * 

PROTHONOTARY 

Of  Northern  District,  may  take  acknowledgments,  etc 70 

PURCHASE, 

Definition  of  title  acquired  by I2 

Title  by    *> 

PURCHASE  MONEY  MORTGAGE— See  Mortgages. 

Definition    of    °° 

Lien  of  date  from  execution  if  recorded  in  sixty  days 88, 126 

Recording   of 88, 126 

Two  executed  on  same  date  of  equal  lien 88, 92, 126 

PURCHASER, 

At  sheriff's  sale  of  mortgage  created  by  husband  without  wife's 

signature  takes  free  of  dower  82 

Innocent,  not  defeated  by  defective  recording 127 

QUIT  CLAIM  DEEDS, 

Form    of    243 

Short  form   243 

RATIFICATION 

Of  acts  of  agent  by  principal  46 


Index.  457 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

REAL  ESTATE, 

Does  not  pass  to  executor  or  administrator 36 

unless  insufficient  personalty  to  pay  decedent's  debts 36 

Form  of  agreement  of  exchange  of  218 

Form  of  agreement  of  sale  of  216 

Ground  rent  is  106 

Modern  business  in 19° 

Purchased  by  partnership  treated  as  personalty  41 

REAL  PROPERTY 

Distinguished  from  personal 1 

RECEIPT 

For  installments  of  mortgage  may  be  recorded 130 

For  redemption  of  unseated  land  may  be  recorded 130 

For  taxes  on  unseated  land  may  be  recorded 130 

In  deed — See  Deeds. 

RECITAL 

By  executor  or  administrator  for  land  sold  at  private  sale  for 

payment  of  decedent's  debts  under  Act  of  April  9,  191 1,..  282 

In  deeds  as  an  aid  in  searching  title 174 

In  deeds  generally — See  Deeds. 

In  deed  of  executor  or  administrator 36 

In  deed  or  mortgage  by  feme  sole  trader 35 

In  deed  where  land  purchased  for  use  of  partnership 41 

In  purchase  money  mortgage  to  third  party 281 

Of  title  by  administrator,  from   278 

Of  title  by  adverse  possession,  form 272 

Of  title  by  attorney  in  fact,  form  276 

Of  title  by  deed,  form  265,  266 

Of  title  by  descent,  form  269,  270 

Of  title  by  executors,  form  277 

Of  title  by  order  of  court  in  partition,  form 274 

Of  title  by  patent,  descent  and  devise  271 

Of  title  by  patent,  form  267 

Of  title  by  sheriff's  sale,  form 279,  280 

Of  title  of  voluntary  deed  of  partition,  form  273 

Of  title  by  will,  form  268 

Of  title  by  writ  of  partition,  form 275 

RECORDER   OF  DEEDS    125 

Cannot  record  mortgage,  assignment,  etc.,  without  certificate  of 

address  of    79 

Duty  to  index  deeds  and  mortgages  127 

Duty  to  indorse  time  of  receipt  of  mortgage,  etc.,  126 

Duty  to  transcribe  deeds  and  mortgages  127 

Exemplified  records  by  as  evidence   122 

Liability  on  bond  for  mistake  in  recording  127 

limitation  in  suit  against  127 

Power  to  administer  oaths,  etc 70 


458  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 
RECORDING, 

Agreement  of  sale  47 

Assignments  for  benefit  of  creditors   T3<> 

Assignment  of  mortgages  130 

Bankruptcy    certificates     T30 

Basis  of,  laid  by  Wm.  Perm  121 

Constructive  notice I23 

Coroner's  deeds   130 

County  commissioners'  deeds   T3° 

Dates  from  time  actually  left  with  recorder  129 

Deeds  executed  without  state  to  be  recorded  in  six  months 125 

Deed  for,  must  be  acknowledged  66 

Deeds  of  trust " 130 

Deeds  should  be  recorded  at  once  to  defeat  any  prior  unre- 
corded  deed    I2S 

Deeds  to  be  in  separate  book 127 

Deeds  to  be  recorded  within  ninety  days  from  execution 125 

Defective    127 

Definition  of   121 

Designation  of  official  for   121 

Discharge  of  officers  and  privates  130 

Early  acts    121 

Effect  of  not  recording  deeds  96, 124 

Election  of  husband  or  wife  to  take  against  will 130 

Exemplification  of  deed  to  land  in  two  counties 130 

Exemplified  copies  of,  evidence  122 

Failure  of,  makes  deed  voidable  only  124 

Failure  of,  makes  deed  void  as  to  subsequent  purchasers  in  good 

faith   124 

Forged  instruments,  effect  of  128 

Grant,  bargain,  sale,  etc 130 

Indexing  of   127 

Is  notice  to  the  world  123 

Lease  for  more  than  twenty-one  years  130 

Letters  of  attorney  authorizing  contracts  or  adjustment  outside 

of  state   130 

Letters  of  attorney  to  satisfy 130 

Made  obligatory  by  Act  March  18,  1775 121 

Map  or  plan  of  lots  where  owners  have  died 130 

Marriage  articles  relating  to  land  130 

Married  women's  releases,  contracts,  etc 13° 

Marshal's  deeds   13° 

Method  of   129 

Mistake  by  recorder  of  deeds  in  127 

limitation  in  bringing  suit  on 127 

Mortgages  or  defeasible  deeds  130 


Index.  459 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

RECORDING— Continued. 

Mortgages   should  be  recorded  immediately  to  secure  priority 

of  lien  I26 

Mortgages  to  be  in  separate  book  127 

Notice  to  world  I23>  I27 

Object  of   I22 

Of  forged  instruments  I2° 

Of  mortgage  creates  lien  from  9« 

Ordinances  vacating  streets,  lanes  or  alleys 130 

Origin  of   I21 

Patents  granted  by  commonwealth  130 

Penalty  for  failure  to  record   I24 

Powers  of  attorney  to  sell,  convey  or  mortgage 130 

Preserves  evidence    I22 

Probated  deed  authorized   72 

Protects  purchasers  from  fraud    I22 

Purchase  money  mortgages  may  be  recorded  any  time  in  sixty 

days I26 

Purchase  money  mortgage  (see  Purchase  Money  Mortgages)  . .  96 

Purpose   of    I22 

Receipts  for  installments  of  mortgages  130 

Receipts  for  redemption  of  unseated  lands  130 

Receipts  for  taxes  on  unseated  lands 130 

Release  of  dower  I3° 

Release  of  legacy  charged  on  lands  *30 

Release  of  mortgage    99 

Release  of  mortgage   •  •  J30 

Time  of,  to  be  endorsed  by  recorder  to  determine  priority  of 

lien  as  to  mortgages  or  defeasible  deed  deposited  same  day  126 

Time  within  which  deeds  must  be 125 

Time  within  which  mortgages  must  be  126 

Title  acquired  by  adverse  possession  must  be  recorded  if  owner 

remove 22, 23 

Title  company  requirement  on  insured  mortgages 126 

Treasurer's  deeds    x3° 

Trustee  deeds  where  lands,  etc.,  are  conveyed  130 

What  instruments  may  be  I3° 

RECORDS, 

How  indexed    *72 

Where  kept  *72 

REDEEMABLE  GROUND  RENTS  (see  Ground  Rents)  108 

RE-ENTRY, 

Remedy  in  ground  rent  112 

REGISTRY   BUREAU    175 

Deeds  to  be  registered  in  all  cities  of  third  class  175 

Deeds  to  be  registered  in  certain  counties 175 


460  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

REGISTRY  BUREAU— Continued. 

Deeds  to  be  registered  in  Philadelphia 175 

Where  located  in  Philadelphia  175 

RELEASE, 

Discharge  of  mortgage  by 99 

form  of  99 

Effect  of  Act  of  1909  as  to  use  of  word 57 

Of  dower,  may  be  recorded  J3<> 

Of  husband  bars  curtesy  141 (<0 

Of  j  udgment,  form  204 

Of  legacy  charged  on  land  may  be  recorded 130 

Of  mortgage,  form  203 

Of  mortgage,  recording  of 99. 130 

Of  wife  bars  dower ■• H5(f) 

REMEDIES 

Of  vendor  against  defaulting  vendee  45 

may  hold  public  or  private  sale  and  charge  vendee  with  loss        45 
may  retain  deposit  money  as  liquidated  damages  if  so  pro- 
vided in  agreement  of  sale  45 

may  tender  deed  and  sue  for  full  purchase  price  45 

RENT, 

Apportionment  of,  in  agreement  of  sale 45  W,  50-3 

Custom  as  to  apportionment  of,  in  Philadelphia  county  45  W 

When  it  accrues  45  W>  5°-3 

REPRESENTATION, 

Descent  by— See  Descent. 

RESIDENCE, 

Certificate  of  mortgagee  79 

REVOCATION, 

Express    J"7 

Implied 168 

Of  letter  of  attorney,  form  of 255 

Of  wills  (see  Wills)  1 167 

RIGHT  OF  POSSESSION  (see  Possession)   7 

Belongs  to  person  with  right  to  property  7 

RIGHT  OF  WAY, 

Deed  of 245 

SALE, 

By  executor  or  trustee  where  not  specifically  directed 36 

Executors  and  trustees  cannot  bid  at  own,  unless  by  leave  of 

court    36 

If  public  sale  directed,  private  will  not  carry  good  title 36 

Judicial  (see  Judicial  Sale)   119 

Of  realty  to  pay  decedent's  debts  bars  dower 145  W 

On  foreclosure  of  mortgage  bars  dower  145  (g) 

Residue    from,    of    realty    to    pay    decedent's    debts    pass    as 

realty   I34sec.  20 


Index.  461 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

SATISFACTION  OF  MORTGAGE, 

By  judicial  sale  I0° 

By  order  of  court  and  proceedings  therein  98 

By  release    99 

Form  of  letter  or  power  of  attorney  to 254 

Married  woman  may  order,  without  joinder  of  husband 82 

Original  should  be  produced  97 

Proceedings  where  original  lost   97 

When  mortgagee  has  neglected 98 

SCI.  FA. 

Corporation  mortgage,  form   258 

In  foreclosure  on  mortgage 75-  77(a) 

Installment  mortgage  and  bond  and  warrant,  form 261 

Mortgage  and  bond  and  warrant,  form 256 

To  revive  a  judgment  lien  177 

SEAL, 

Adoption  of  printed   Si 

Any  instrument  under,  is  deed  51 

Any  mark  intended  for,  sufficient 61 

Deed  of  corporation  must  be  under  61 

Form  in  modern  practice 5* 

In  deed   6l 

Mark  of  any  character  may  be  Sr 

Necessity  for,  in  a  deed 5X>  61 

Not  necessary  in  agreement  of  sale 44 

Of  corporation  no  prescribed  form 61 

Of  executing  officer  in  taking  acknowledgments  69(f) 

Printed    51 

Wax  formerly  used    Si 

SEARCHES, 

Against  administrators    174 

Against  executors    174 

Against  guardians   174 

Against  lunatics   174 

Against  receivers   174 

Against  trustees  174 

Assignment  of  mortgage,  how  made 187 

At  registry  bureau   175 

Brief  or  abstract  of  title,  arrangement  of  and  form 190 

By  title  insurance  companies  (see  Settlements)  201 

Certificates  of  search  by  prothonotary    180 

Certificates  of  search  by  recorder  of  deeds  180 

Charges  for  making  searches,  who  must  pay 204 

Conveyance,  how  made   174 

Encumbrance,  how  made 176 

Examination  of  property  to  discover  easements  188 

For  bankruptcy   174 


462  Conveyancing  in  Pennsylvania, 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 
SEARCHES— Continued. 

For  ground  rents  174 

For  judgment  liens  178 

appellate  court   179 

common   pleas   court    180 

criminal  court  181 

For  lien  of  decedent's  debts  183 

For  marshal  sales   174 

For  mechanics'  liens    184 

For  mortgages,  how  to  make  176 

For  municipal  liens  184 

For  release  of  mortgages  187 

For  sheriff's  sales   174 

For  taxes J86 

For  unfiled  liens   186 

Form  of   190 

How  long  to  search  for  178 

How  to  search  indexes  of  records   172 

In  locality  index  in   Philadelphia    185 

object  of   searching    185 

Judgment  index,  how  to  search  in  180 

Kinds  of 173 

Necessity  for I71 

Recital  in  deeds  as  and  aid  in  searching  174 

where  made 174 

Superior  Court  judgment,  where  to  search  for 179 

Supreme  Court  judgment,  where  to  search  for  179 

Synopsis  of,  how  to 189 

United  States  court   182 

Where   to   make    178 

SECOND  MORTGAGE  (see  Mortgage)  92 

To  distinguish  from  purchase  money  mortgage 88 

SENILITY, 

Guardian   for    31 

Proceeding  for  guardian  for  31 

What  constitutes    31 

SETTLEMENTS, 

Application  for  title  insurance,  how  made,  form     201 

Approval  of  instruments  before  settlement  203 

Certificate,  settlement,  reason  for,  form 202 

Conveyance,  how  made,  form 205 

Cost  of  title  insurance  201 

Mortgage,  how  made,  form 206 

Payment  of  title  charges  and  conveyancing  expenses  204 

Rule  as  to  apportioning  rent,  taxes  and  interest  charges 205 

Rule  as  to  estimating  value  of  insurance  policies  in 45(d),  205 


Index.  463 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

SETTLEMENTS— Continued. 

Suggestions  in  making 207 

Through  title  insurance  companies  200 

SHERIFF  DEEDS, 

Form    236 

Form  of  recital  of  title  at  sale  of 279 

Recital  of  title  by,  for  property  of  a  decedent  280 

Where    recorded    174 

Where  to  search  for  174 

SHERIFF  SALE, 

When  it  will  discharge  liens    176 

Where  to  search  for   174 

SIGNATURE 

By  agent  to  agreement  of  sale 46, 196 

By  mark  when  parties  unable  to  write  60 

By  vendee  in  agreement  of  sale  not  necessary  44 

By  vendor's  husband  or  wife  necessary  in  agreement  of  sale 44 

By  vendor  in  agreement  of  sale  is  necessary  44 

If  parties  unable  to  write  60 

Must  be  at  end  of  will 161 

Of  officer  to  acknowledgment  necessary  69(d) 

To  deed,  necessity  for  60 

To  deed  of  deceased  or  absent  grantee  may  be  proved 72 

To  will 161 

SOCIETIES — See  Unincorporated  Associations. 

Unincorporated     40 

SOUNDNESS  OF  MIND, 

What    constitutes    159 

SPECIAL  WARRANTY— See  Warranty;  Deeds. 

STATUTE  OF  FRAUDS  AND  PERJURIES, 

Assignment,   grant   or   surrender   of   interest   in   land   must  be 

written    by     43 

Exceptions    to     43 

History    of    43 

In    Pennsylvania    43 

Leases  for  greater  term  than  three  years  must  be  in  writing  by  43 

STATUTE  OF  LIMITATIONS, 

Actions  to  determine  title  to  land  must  be  begun  within  twenty- 
one    years    13 

As  to  claims  under  intestate  laws    134  sec.  21 

As   to  persons   under   disabilities    13 

In    Pennsylvania    14 

STATUTE  OF  WILLS— See  Wills. 

In    Pennsylvania    158 

SUBSCRIBING  WITNESSES— See  Wills. 

SUBSTITUTION, 

Form  of  letter  of   253 


464  Conveyancing  in  Pennsylvania. 

References  are  to  numbered  paragraphs  and  not  to  pages. 

Paragraph 

SUGGESTIONS 

In  drawing  agreements  of  sale  5° 

In  making  settlements  207 

SURVIVORSHIP, 

Abolished  in  joint  tenancy   5-A- 

Exists  in  real  estate  of  father  and  mother  descending  under 

intestate   laws    134  sec.  3 

Exists    in   trust   estates    5~A 

In   estates   by   entireties    S_D 

Not  present  in  tenancy  in  common    £-A 

TACKING  INTERESTS 

To  acquire  title  by  adverse  possession  17 

TAXES, 

Apportionment  of,  in  agreement  of  sale  45  (h) 

Assessors  locate  personal  property  by  recording  of  mortgages, 

assignments,  etc.,  with  certificate  of  residence  79 

Custom  as  to  apportionment  of,  in  Philadelphia  county  45  (h) 

Encumbrances   5°-3 

Search  for  lien  of   J86 

When  they  accrue    45  (^) 

TENANCY  IN  COMMON, 

Definition  of    5_C 

Effect  of  Act  of  1812  as  to  5-C 

How  held  in   5_C 

In  what  it  consists   5_C 

No   survivorship    in    5"C 

Partition    in §-C 

To  land  inherited  under  intestate  laws   134  sec.  16 

TESTAMENT, 

Definition  of   J55 

TESTATOR,  DEFINITION  OF  1.55 

TESTATRIX,  DEFINITION  OF   155 

TITLE, 

Abstract  of,  form   IQX) 

Acquired  by  adverse  possession  I3> 22 

Alienation    of      26 

Brief  of,  form   190 

By  adverse  possession,  against  whom  may  be  acquired 20 

By  adverse  possession,  definition  of  12 

By  descent,  definition  of  12 

By  descent  137 

By   prescription    12 

By  purchase,  definition  of   12 

By  unincorporated  associations    4° 

treated  as  in  individual  members  40 


Index.  465 

Paragraph 

TITLE— Continued. 

Charitable  societies  may  hold  in  own  name  40 

Churches  may  hold  in  own  name   40 

Cloud  on,  created  by  recording  agreement  of  sale   47 

Definition  of    1, 6 

Equitable 10 

Good    8 

How  acquired   12 

In  agreement  of  sale    45  (0 

Is   evidence  of  ownership    1,6 

Is   marketable    25 

Is  perfect  and  good  when  acquired  by  adverse  possession 22 

Legal,  by  trustee   10 

Marketable   9.  45  (*) 

May  be  acquired  in  three  ways  1 1 

May  be  good,  bad  or  weak  6 

May  be  to  lesser  estates  24 

Must  be  recorded  when   23 

Origin  of,  by  adverse  possession   13 

Perfect 8 

Recital  of  (see  Recital)    1 

Religious  societies  may  hold  in  own  name  40 

Through  forged  instrument  128 

To  land  conveyed  by  corporation  illegally  holding,  good  in  hands 

of  grantee    38 

To  land  held  illegally  by  corporation  defeasible  only  by  com- 
monwealth      38 

What  it  is   6 

When  split  in  unincorporated  association   40 

TITLE  INSURANCE— See  Settlements. 

Application   for    201 

form   of    203 

Companies  for,  have  replaced  the  old-time  conveyancer   200 

Cost    of    201 

Payment  of  title  charges  and  conveyancing  expenses  204 

TITLE  INSURANCE  COMPANIES  200 

Require   insured    mortgages    to   be    recorded   two    days   before 

settlement   126 

Specification  of,  in  agreement  of  sale  45(0 

TO  HAVE  AND  TO  HOLD 
Clause  in  deed — See  Deeds. 

TRANSCRIBING 

Deeds  and  mortgages    127 

Duty  of  grantee  and  mortgagee  to  examine  record  for  defective  127 

Duty  of  recorder  of  deeds  in 127 

TREASURER'S  DEEDS 

May  be  recorded  130 


466  Conveyancing  in  Pennsylvania. 

Paragraph 

TRUST, 

Form  of  declaration  of  225 

TRUSTEES, 

Acknowledgment  of  deed  by    67 

All  must  join  in  deed  if  more  than  one  36 

Conveyance  to,  need  not  contain  words  of 54(4) 

Deeds  of  conveyance,  recording  of 130 

Escheat  of  land  held  by    150 

Form   of   acknowledgment   by    209 

Generally  no  power  to  sell  or  convey  real  estate  without  specific 

authority    36 

Holder  of  legal  title 10 

Power  to  mortgage  85 

Search  against '. 174 

Should  receive  consideration  for  release  of  mortgage   99 

TRUST  ESTATES, 

Survivorship   in    S-A 

UNDER  AND   SUBJECT 
Clause  in  deed — See  Deeds. 

Personal  liability  of  grantee  where  taking 54(&) 

UNDUE   INFLUENCE 

In  making  will  159 

UNFILED  LIENS, 

Search  for   186 

UNINCORPORATED  ASSOCIATIONS  OR  SOCIETIES  40 

Cannot  hold  land  in  society  name  generally  40 

Charitable  societies  may  hold  land  in  associate  name  40 

Churches  may  hold  land  in  associate  name  40 

Religious  societies  may  hold  land  in  associate  name  40 

Title  of,  treated  as  being  in  individuals   40 

Title  to  land  where  division   40 

UNITED  STATES  COURT, 

Search  for  j  udgments  of   182 

When  judgments  of,  are  a  lien  178 

UNSOUND  MIND,  PERSONS  OF, 

Burden  of  proof  as  to  29 

Committee   for    29 

Decree  of  court  after  proceeding 29 

Effect    of    proceedings    29 

Guardian    for 29 

Mortgage  of  real  estate  of,  by  committee  29,  84 

Powers  of  committee  29 

Presumption  as  to  contracts  of,  before  decree  of  court  29 

Presumption  of  sanity  29 

Recording  of  decree  29 

Sale  of  real  estate  of,  by  committee  29 

Who   are    29 


Index.  467 

Paragraph 

VENDEE, 

Definition  of   4 

Equitable  title  of,  on  execution  of  agreement  of  sale  . , 48 

Lease  of,  when  vendee  is  also  tenant 50-2 

Liability  for  default  in  agreement  of  sale 45 

Signature  of,  not  necessary  in  agreement  of  sale  44 

VENDOR, 

Authority  of  agent  to  sell  should  be  signed  by  husband  and  wife        46 

Definition  of   4 

Equitable  title  of,  on  execution  of  agreement  of  sale 48 

Signature  necessary  in  agreement  of  sale  44 

Signature  of  wife  or  husband  necessary  in  agreement  of  sale..  44,46 
Rights  against  defaulting  vendee  45 

VENUE, 

To    acknowledgment    69  b 

VICE  CONSULS, 

Power  to  take  acknowledgments,  etc 70 

VIVUM  VADIUM   74 

WARRANT— See  Bond  and  Warrant. 

WARRANTY, 
General, 

meaning  of,    55(c) 

should  be  expressly  stipulated  for 55(c) 

words  necessary  to  constitute  .55(c) 

words  necessary,  under  Act  of  1909  55(c),  58 

Special, 

distinguished  from  general  55(c) 

meaning  of    55 (c) 

words  necessary  to  create,  under  Act  of  1909 55(c),  58 

WATER  COURES, 

If  merely  convenient  do  not  pass  as  appurtenant  when 54  (/t) 

WEAKNESS  OF  MIND  AND  SENILITY, 

Court  alert  to  protect  31 

Definition  of   31 

Guardians  for  persons  of  31 

Not  sufficient  of  itself  to  set  aside  deed   31 

Petition  for  appointment  of  guardian  in   31 

Power  of  guardian  for  persons  adjudged  31 

WHOLE  BLOOD  (see  Descent)   136 

WIDOW  (see  Descent;  Dower;  Married  Women)    165 

Descent  under  intestate  laws — See  Descent. 

Election  of,  to  take  against  will  must  be  recorded 130,  165 

Exemption — See  Descent. 

Right  to  take  against  the  will  165 

WIFE — See  Married  Women. 

Signature  of,  in  agreement  of  sale  46 

Signature  of,  in  authority  to  agent  to  sell 46 


468  Conveyancing  in  Pennsylvania. 

Paragraph 
WILL, 

Adoption  of  child  does  not  revoke 168 

Bequest  of  personalty  is  construed  by  laws  of  state  of  testator's 

domicile   157 

Birth  of  children  after  making 168 

Cancellation,  obliteration   or  destruction    167 

Capacity  to  make    159 

Clause  giving  executor  power  to  sell,  form  285 

Codicil  for  after-born  children    287 

Codicil,    form    286 

Containing  devise  or  bequest  to  charity,  etc.,  requires  two  disin- 
terested witnesses    162 

must  have  been  made  one  calendar  month  before  decease 

of    testator    162 

Conveying  devised  property,  a  revocation   168 

Definition    of    155 

Description   of    163 

Devises  of  realty  are  construed  by  laws  of  state  where  land  lies  157 

Disinterested  witnesses    162 

Divorced  woman  living  with  paramour  may  not  make 159 

Election  of  husband  or  wife  to  take  against,  must  be  recorded. .  130, 165 

End  of  will  161 

Execution    of    161 

Express  revocation  of  167 

Form  of   •    163 

Form  of  clause  giving  executor  power  to  sell  285 

Form  of  recital  of  title  by  268 

Holograph    155 

Implied  revocation  of 167,  168 

Lead  pencil    160 

Modern  requirements   of    167 

Must  be  in  writing  158,  160 

Must  be  probated  within  three  years  169 

Must  be  signed  at  the  end  161 

Necessity  for  subscribing  witnesses   162 

Nuncupative,  passes  only  personal  property  158 

Origin  of    156 

Probate    of    169 

Recital  of,  in  devisee's  deed 170 

Revocation    of    167 

Right  of  surviving  husband  to  take  against 166 

Signature  by  initials  valid    161 

Signature  by  mark  valid   161 

Signature,  necessity  for    161 

Should  be  probated  in  county  where  decedent  lived 169 

Soundness  of  mind,  what  constitutes  159 

Speaks  from  date  of  testator's  death  163 


Index.  469 

Paragraph 

WILU— Continued. 

Statute  of,  in  Pennsylvania  158 

Subscribing  witnesses  in  New  Jersey  157 

Subscribing  witnesses  in  Pennsylvania  157, 162 

Surviving  husband's  right  to  take  against 166 

Terms  of   " 155 

Typewritten,  valid  160 

Undue  influence  in  making _ . . .       159 

Who  may  make  ... .       159 

Who  may  take  against — 165, 166 

Widow's  right  to  take  against 165 

WITNESSES,  SUBSCRIBING, 

What  are  disinterested — 162 

When  necessary  to  will  1-57, 162 

WRITING, 

Will  must  be  in  160 


..^SOUTHERN 


m  SASMT  MARY-'S 
IBtAi 


